Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Guatemala (Ratification: 1952)

Individual Case (CAS) - Discussion: 2023, Publication: 111st ILC session (2023)

Written information provided by the Government

Trade union rights and civil liberties

1. Work done at the institutional level. In order to achieve an effective investigation into acts of violence against trade union leaders and members, the Office of the Public Prosecutor has been addressing specific applications for prosecution to the competent courts, in order to secure penalties for the instigators and perpetrators of acts causing the deaths of trade union leaders and members, taking Instruction No. 1-2015, part of the comprehensive case management system (GIC), as the starting point for the investigation. As can be seen in table 1 below, the Government shows that it has made systematic, ongoing progress year-on-year in obtaining rulings in cases relating to the deaths of trade union leaders and members which have been reported to the ILO, with reference to key indicator No. 1 of the road map for the Convention. Moreover, the trade union sector has been given priority in the policy against criminal activity, with the opening of a Section Prosecution Office which addresses relevant matters, its focus strengthened by a budget enabling procedural outcomes which are timely, objective, relevant and based on the rule of law.

[Table not reproduced: Rulings obtained and reported to the Committee of Experts on the Application of Conventions and Recommendations at the ILO (2020, 2021, 2022 and 2023)]

2. Coordination on matters of security. The Office of the Public Prosecutor is responsible for preparatory procedures and directs the National Civil Police in its investigatory role, while the National Civil Police has the task of investigating incidents which are automatically liable to incur punishment and prosecution, preventing these from giving rise to subsequent consequences, and identifying individual suspects, among other things. Accordingly, staff of the Ministry of the Interior provide security for trade unionists, in the form of perimeter or personal protection measures, depending on the respective risk assessment which is carried out quickly (in not more than a week). The security measures can be requested by the Office of the Public Prosecutor, the injured party, the Human Rights Procurator’s Office, and the Ministry of the Interior. For 2023, all cases handled by the unit for the protection of trade unionists have been at the request of the Office of the Public Prosecutor and so all of them involve an investigation process. While the respective risk assessment is being undertaken before the relevant security measures are provided, the Ministry of the Interior provides the trade unionist with the respective preventive measure. In this way, rapid, effective and appropriate protection is provided to trade union leaders and members who are at risk, with the aim of preventing any further acts of anti-union violence. The Government points out that on the subject of security, the Ministry of the Interior is running canteens for the National Civil Police, with six of them operating in the capital city. This is to prevent any trade union leader or member to whom a security officer has been assigned from incurring any expense.

3. Trade union technical round tables involving the Office of the Public Prosecutor and the trade unions; unit for the analysis of attacks against trade union leaders and members at the Ministry of the Interior, and the trade unions. Since early 2023, the Office of the Public Prosecutor has promoted dialogue forums with the trade unions, taking account of the schedules of the workers’ representatives, and they have agreed a date for addressing specific issues relating to their interests. Otherwise, bilateral dialogue forums have been implemented between the Attorney General and staff, and the head of the Section Prosecution Office and representatives of the trade unions to address subjects of interest to them. Furthermore, from late 2022 to the present time, dialogue has been opened with the workers’ representatives with a view to amending Ministerial Decision 288-2022, in order to cater to the workers’ needs with greater clarity and focus (see GB.346/INS/10, Part III, paragraph 15(1), on combating anti-union violence).

4. The Government reiterates its sadness and deep regret at the 98 cases of death recorded in 2022. The Office of the Public Prosecutor has provided details of the outcome and/or current status of the cases, as follows:

No. of cases / Status of each case

26 / Judgments handed down (26 convictions, 10 acquittals and 1 security measure).

7 / 8 arrest warrants issued.

3 / Scheduled for 2023; some with a date set for the public hearing and at the intermediate stage; three cases not previously brought to court.

46 / “Section 327 closure” procedure: With regard to one case also before the Committee on Freedom of Association (Case No. 2609), the Office of the Public Prosecutor indicates contempt of court by security guards who did not note the entry of vehicles; and on 9 May 2023 proceedings for concealment were opened, with a change of status from “section 327 closure” to “investigation”.

10 / Under investigation (two are being examined by the Special Prosecutor’s Office against Impunity (FECI)).

6 / Termination of criminal proceedings (two cases are also covered by the “section 327 closure” procedure).

98 / Total number of cases reported to the ILO.

With regard to this group of 98 cases, the Government informed the Committee on Freedom of Association in relation to Case No. 2609 that the National Tripartite Committee on Labour Relations and Freedom of Association (CNTRLLS) formally delivered to the Attorney General a copy of the recommendations of the Committee on Freedom of Association regarding Case No. 2609, contained in its 391st Report (October–November 2019), so that with due account taken of these recommendations a solution would be found to the cases of merit. Furthermore, a request was made to formalize the trade union technical round table with an instrument emanating from the Attorney-General with a view to achieving legal certainty. In this regard, the outcome of the 35 cases referred to by the Committee on Freedom of Association and the CNTRLLS are incorporated into the list in point 4 of this document, and the trade union technical round tables are active and have the participation of the workers, according to the dates supplied by them.

Procedural aspects. The Government states that the Office of the Public Prosecutor, in follow-up to the commitments made during special meeting No. 1-2023 of the CNTRLLS held on 29 March 2023, invited the representatives of the sectors within the National Tripartite Committee to a meeting on 31 May 2023, at which it provided information on procedural aspects and indicated generally the grounds for the prosecution decision reached on the cases and the judicial consequences, stating that the status of these cases can change from “section 327 closure” to “investigation” (as in a specific case concerning the death in 2007 of a member of SITRABI, the status changing during May 2023). The Government emphasizes once again that the cases can be reopened at any time and that regarding the decision to apply the outcome of “section 327 closure” to the 46 cases, this was not a unilateral judicial decision; rather, the cases were submitted to an in-depth investigation involving full working days and analysis of each of the cases. Moreover, the 46 “section 327 closure” cases included three cases processed under the “Coatepeque phenomenon” heading, regarding the numerous procedures carried out by the Office of the Public Prosecutor (275 procedures for the 3 cases), the exhaustive analysis of each case – with long working days effected by high-level coordination teams from the Office of the Public Prosecutor –, and these were handled in compliance with Instruction No. 1-2015, with no anti-union motives found in any of these three cases.

(a) Procedure of closure under section 327 of the Code of Criminal Procedure (CPP) of Guatemala. The closure procedure is used: (i) when it has not been possible to determine specifically the person who is accused of committing the crime, even though appropriate investigations have been carried out; or (ii) in the event of contempt of court. No judicial authorization is required and it does not result in case law. The investigation must be resumed if new elements emerge which make it possible to identify the accused or the accused has been arrested.

The Office of the Public Prosecutor created the procedure of closure through Instruction No. 04-2005. The investigating entity is obliged to use the necessary resources to ensure a successful criminal prosecution, and where this cannot be done owing to material impossibility (a combination of legal or physical circumstances which makes it impossible to deliver a judgment on its own terms), it is necessary to regulate the appropriate use of the closure procedure. This is based on the principles of: (i) efficacy (ensuring that action is taken in accordance with the obligation to guarantee the exercise of the fundamental rights to be protected); (ii) legality (prosecutors must fulfil the criteria established by section 327 of the CPP in order to close the files dealing with criminal actions); and (iii) recognition of the victims (the Office of the Public Prosecutor is obliged to provide victims with the necessary means to assert their rights within the judicial process. Accordingly, prosecutors must notify victims in writing of the decision to close the case. This is without prejudice to notifying the parties established in the process ordered by section 327 of the CPP).

According to Instruction No. 04-2005, the closure procedure must be applied in accordance with section 327 of the CPP, taking account of: (i) identification of the accused; (ii) the previous steps taken in relation to the “section 327 closure” procedure in general and specific proceedings concerning crimes against life and crimes against life involving the use of firearms; and (iii) when the victim expressly declines to support the investigation, prosecutors must seek to obtain information by any other means, especially when the crimes are of social importance or have a serious social impact. Prosecutors must also coordinate with the Office for the Care of Victims in order to meet the victims to provide them with support and gather information on their interests to see whether it would be possible to obtain their support during the investigation.

(b) Termination of criminal prosecution. Under the CPP, a prosecution is terminated by the competent court on account of: the death of the accused; amnesty; the statute of limitations; payment of the maximum fine; the end of the trial period where a suspension of criminal proceedings has not been revoked; the revocation of individual action status in cases involving private action offences; the withdrawal of the complaint at the request of a party in cases involving private action offences; the death of the injured party in cases involving private action offences, though the action already initiated by the injured party can be pursued by that person’s heirs or successors, except in cases specified by the Penal Code. The statute of limitations runs, is suspended or is interrupted separately for each of the parties to the offence, unless otherwise expressly provided for.

Application of the Convention in practice

5. Public registration of trade unions. The Government, through the Ministry of Labour and Social Welfare, reports that it has issued Ministerial Decision No. 214-2023 on the procedure for issuing union identification cards to active members of the administrative structure of trade union organizations. The objective of this is to regulate the procedure in a clear and simple way, free of charge, in order to provide workers with badges that they can use to identify themselves before the relevant entities, in order to freely exercise their union rights. As the public registration of trade unions, the approval of collective agreements on working conditions and the campaign on freedom of association and collective bargaining are key indicators of the road map for Convention No. 87, the Subcommittee on the Implementation of the Road Map has addressed them at two sessions in 2023, with the participation of officials from the Labour Directorate, the General Secretariat and the Technical and Legal Advisory Council. Here there has been interactive tripartite dialogue on the following topics: legal grounds, procedural actions, previous actions, notifications and challenges still needing to be addressed. Lastly, in addition to the efforts made by the Government on the freedom of association campaign, the Attorney General is proposing an initiative to work towards compliance with key indicator 7 of the road map of the Convention.

6. Reinstatements. Regarding the space for dialogue with workers, the President of the Chamber for the Protection of Rights and Preliminary Hearings continues to hold bilateral meetings with representatives of the workers on the concerns raised.

7. Approval of collective bargaining agreements on working conditions. In accordance with key indicator 9 of the road map, the Government of Guatemala, through the Ministry of Labour and Social Welfare, states that in the institutional context of Guatemala, the approval of collective bargaining agreements is understood to entail an examination of their legal validity in form and substance. Among the main issues that have been observed in the public sector in Guatemala is the examination of collective bargaining agreements on working conditions. Through this experience we have observed that if the Government, as the competent authority on these matters, conducts an adequate examination for the approval of collective bargaining agreements in the public sector, it will help to prevent situations such as the one highlighted by the Committee on Freedom of Association. To this end, it was decided that the approval process should involve as much as possible the examination of the laws currently in force. Even though the negotiating and signatory parties are public authorities and organizations of public employees or workers are inevitably considered to be aware of the laws in force which regulate the agreements they negotiate and sign, a certain knowledge gap remains which results in clauses that cannot be duly validated from a legal perspective.

This means that the examination of the legal or juridical validity of a collective bargaining agreement on working conditions should include an examination which covers at least the following elements: (a) recognition that article 106 of the National Constitution establishes collective bargaining as a constitutionally desirable means for improving the minimum social rights of workers, in this case workers in the public sector; and that, to this end, the promotion and protection of this fundamental right are established as an objective of the State; (b) within the framework of the full exercise of the fundamental right to collective bargaining, the signatory parties are considered to have complete freedom to negotiate employment and working conditions, as established in the Collective Bargaining Convention, 1981 (No. 154); however, this freedom is subject to the obligation on the parties to respect the law and public order in the negotiation process, in accordance with the 2013 General Survey of the Committee of Experts concerning labour relations and collective bargaining in the public service, in observance of the fact that collective bargaining must always be carried out in the manner prescribed by law; and (c) this basic condition of legality applies particularly in the public sector where public authorities, as employers, may negotiate agreements as long as the content agreed upon falls within the legal competence conferred on them as public officials under the Guatemalan Constitution.

The Government reiterates its unwavering commitment to intensifying its inter-institutional and state efforts to comply with the Convention.

Discussion by the Committee

Chairperson – I invite the Government representative of Guatemala, the Minister of Labour and Social Welfare, to take the floor.

Government representative (Minister of Labour and Social Welfare) – I am grateful for this opportunity for the Government of Guatemala, accompanied on this occasion by representatives of the judges of the Supreme Court and the Constitutional Court, as well as high-ranking representatives of the Public Prosecutor’s Office and the Ministry of the Interior, to be able to provide information on the action taken by the Government of Guatemala in relation to the observations made by the Committee of Experts concerning the Convention, as it has done repeatedly in the Committee on Freedom of Association and the Governing Body in their various sessions regarding the decisions reached between 2018 and 2020, in which the Government was urged, in conjunction with the social partners in Guatemala and with ILO technical assistance, to continue making every effort and devoting the necessary resources to achieve a sustainable and full application of the provisions of the road map. The Government noted with satisfaction the three-year ILO technical assistance and cooperation programme, aimed at enhancing Government efforts to ensure compliance with the Convention. Guatemala has honoured its international commitments with its own budget, plus the financial assistance from the ILO, through its own funds and other programmes since 2022, in its third year of implementation. The Government also noted the information provided by the Office in document GB.346/INS/10, in particular the priority actions identified during the joint mission of the ILO, the International Organisation of Employers (IOE) and the ITUC. Allow me therefore to reiterate that Guatemala continues to provide information and emphasizes that it has made significant progress on the implementation of the road map and on the points which were raised by the joint mission and adopted by the National Tripartite Committee on Labour Relations and Freedom of Association. Those points include the following:

(1) A significant increase in the institutional budget of the Special Prosecutor’s Office at the Public Prosecutor’s Office dealing with crimes committed against trade union leaders and members, which we deeply regret. In addition, an increase in the budget for security measures for the workers’ sector adopted by the Ministry of the Interior, and the opening of a Pluripersonal Court of Penal Resolution dealing with offences of non-compliance in labour-related matters, as part of the judiciary initiative, with some US$3 million allocated to this area. As a result of the above, with regard to the 26 cases submitted by the Public Prosecutor’s Office and resolved by the judiciary, convictions stand at 80.77 per cent and acquittals at 19.23 per cent.

(2) By comparison with the years 2016–22, crime rates have decreased in Guatemala. However, the Ministry of the Interior has established a forum for dialogue at the highest level in order to address the subject of attacks against trade union leaders and members, also regulated by a ministerial decision. There are established risk assessment procedures for the provision of security measures for trade unionists. Institutional efforts have been made to provide speedy and effective protection to all trade union leaders and members in situations of risk, preventing any fresh acts of anti-union violence from being committed. Moreover, the Government of Guatemala has established canteens for officers of the National Civil Police, which prevents trade unionists receiving protection from the above-mentioned Ministry from incurring any expense.

(3) With regard to legislative issues, the Government complied as stated by the joint mission by bringing legislative proposals before the legislature within the time frames indicated in the joint mission last year.

Nevertheless, we are facing challenges regarding fulfilment of our obligations and the effective application of the Convention with regard to standards-related issues. In March 2023, we asked the ILO for technical assistance so that we can support this esteemed organization in examining the legislative proposals, and we hope that the response from the Office will be in the affirmative, as it always has been in the past. We are now supported with funds from the EU through the assistance and cooperation programme which has been in force since September 2022. For this we are very grateful; the combination of this and the Government’s efforts yields greater certainty that we will achieve the goals to which we have committed.

(4) With regard to the application of the Convention in practice, we are grateful for ILO support and technical assistance with regard to the public registration of trade unions. The Government would like to point out that major progress has been achieved in the awareness-raising campaign on freedom of association and collective bargaining, providing posters in 18 priority departments of Guatemala, which initially were supposed to bear the logos of the most representative employers’ and workers’ organizations. However, with regard to the comments made by the workers, publicity regarding the awareness-raising campaign has only involved the Government logo. It should be noted that the information on the awareness-raising campaign concerning freedom of association has been shared with the Subcommittee on the Implementation of the Road Map, which forms part of the National Tripartite Committee. I emphasize that at the meeting of 31 May 2023 the workers welcomed the initiative of the Attorney-General of the Republic of Guatemala to conduct an awareness-raising campaign on freedom of association, where their support was requested to ensure its implementation. Once again I stress the fact that our greatest strength has been and still is tripartite dialogue within the National Tripartite Committee, a forum which has been attended by the Attorney-General. And now I give the floor to the Secretary against Corruption from the Public Prosecutor’s Office so that he can provide further details on this matter.

Another Government representative – With regard to the urgency of investigating all acts of violence against trade union leaders and members, in order to apportion responsibilities and punish both the instigators and perpetrators of such acts, taking full account of the investigations and the trade union activities of the victims, the Public Prosecutor’s Office of Guatemala would point out that in 2017 there were 64 municipal prosecutors’ offices. At present, through the appropriate use of the budget, there is now coverage in 340 municipalities throughout Guatemala. In other words, this is 100 per cent national coverage, providing effective access to the justice system for all Guatemalan citizens in their own communities. This means that in cases where trade union leaders and members are affected, the Public Prosecutor’s Office can take the necessary action to address the complaints, via the implementation of a comprehensive case system which deals with new cases in 24, 48 or 72 hours.

With a view to obtaining immediate and vital results concerning the presentation of prosecution requests to the competent court in a timely fashion, the Public Prosecutor’s Office recently obtained ISO 9001-2015 certification in 273 of the 340 municipal prosecution offices, and is in the process of certifying all the prosecution offices at the national level.

Here I must point out that given the importance of the subject and in compliance with the obligations of the State of Guatemala, since 2019 there has been a Special Prosecutor’s Office dealing with crimes against judicial officials and trade unionists. This is in the process of being certified under the same quality standard, and this aims to provide a differentiated response in accordance with the needs of the trade unions. It is a response to the phenomenon of crime.

As regards the long-standing cases, these have been examined in depth and in line with prosecution instructions in order to provide a response and reduce prosecution delays.

It is important to reiterate that the Public Prosecutor’s Office is an autonomous auxiliary entity of the judiciary and that the whole Public Prosecutor’s Office, representing the public authorities with regard to investigation and criminal prosecution, is a fundamental pillar in the construction of the State of law, which guarantees compliance with the law, due process and respect for human rights. Hence, if it did not fulfil its legal function, such an omission would imply impunity.

The civic right to file a complaint can never be limited or restricted, and the cases of complaints filed by trade union leaders and members in Guatemala receive special treatment, on the basis of Instruction No. 1-2015 for the effective investigation and criminal prosecution of crimes committed against unionized workers, other labour rights defenders and trade unionists, which is issued by the Public Prosecutor’s Office. The Instruction underlines the importance of working together with the trade unions for the provision of vital information concerning the complaints filed, in which the victims are trade unionists. I reiterate that these are addressed and investigated objectively, impartially and scientifically. Convictions or acquittals handed down under Guatemalan law are not the only forms of settling or responding to complaints.

Recalling the proposals and principles of the United Nations (UN) Charter, there is a need for respect for due process, for each case to move forward in accordance with the law, so that when the judicial ruling is issued, this is what determines with legal certainty the action of the State of Guatemala with regard to the principle of legality. In this context the Attorney-General, accompanied by her technical team, of which I am honoured to be a member, have participated in three meetings of the National Tripartite Committee. We have also held bilateral meetings with representatives of the unions in order to explain the legal concepts or formalities, criteria for application, legal consequences, methodology and grounds, such as the exemplification of cases.

Furthermore, those who wish to make statements in support of the cases have been invited to file supporting complaints or to appear in person in the various procedures so as to participate and express views in the cases, as provided for by law.

I should reiterate that this dialogue forum has been implemented exclusively with the workers. In addition, at the request of the employers and Government within the National Tripartite Committee, an extraordinary meeting was held on 29 March 2023, with a tripartite follow-up meeting held on 31 May 2023, in order to explain the legal concepts and consequences in the cases concerning the deaths of trade union leaders and members.

The closure procedure under section 327 of the Code of Criminal Procedure (CPP), as explained in the documents sent to this Committee, applies when it has not been possible to identify individual suspects or if there has been contempt of court on their part. In other words, the suspect has not appeared voluntarily in court or cannot be located. This does not mean that the case is closed definitively, since that could only result from dismissal of the case. Closure under section 327 means that if elements emerge giving grounds for a prosecution request to be filed with the competent court by the prosecution service or on the basis of an individual initiative, the processing of the case in question can continue. Such a situation has already arisen in the Section Prosecution Office which deals with crimes against trade unionists in returning to the stage of bringing charges when cases already contain sufficient elements to enable a judgment to be handed down. In this regard, the Public Prosecutor’s Office bases this decision on Instruction No. 4-2005 regulating the use of the closure procedure at the Public Prosecutor’s Office.

In the cases denounced for the deaths of trade union leaders and members examined by the Public Prosecutor’s Office, it has not been established that these occurred as a result of anti-union motives or the exercise of trade union activity. However, the Public Prosecutor’s Office reiterates its unlimited commitment to fulfilling its constitutional duty and continuing to intensify institutional efforts to ensure that cases in which trade unionists are the victims are resolved as quickly as possible, independently of cases at the investigation stage or waiting for an arrest warrant to be enforced.

I re-emphasize that the administration of the Public Prosecutor’s Office has an open door policy. The national constituents are therefore invited to maintain an interactive dialogue with the autonomous institutions and state agencies in order to obtain effective justice for all.

Worker members – I would like to pay tribute to brother Carlos Mancilla who passed away in February. He tirelessly represented Guatemalan unions at national, regional, and international level, particularly in the ILO. May we carry forward his vision ensuring that workers’ voices are heard, and their rights are protected.

Few cases have required as much supervision from this House as that of Guatemala. Indeed, this is the 14th time in 20 years that this Committee has heard a case concerning either freedom of association or collective bargaining. While we appreciate that the ILO has spared no effort to address the many serious and persistent violations in the country, through the supervisory system, through technical capacity-building, including the continued financial and political involvement of several governments, through the involvement of the tripartite constituents and so on, it is tragic that so little progress has been made despite so much effort.

In addition to the ILO, the Inter-American Court of Human Rights in a recent case recognized that Guatemala failed to respect freedom of association, including the right to strike. And the UN Human Rights Council, in the report of the last periodic review, in April 2023, raised concerns about violence against trade unionists and impunity for the crimes. But no matter how clear the calls have been, they have not been heard.

Today, the ILO Memorandum of Understanding and road map, developed after a complaint to establish a Commission of Inquiry, remain largely dead letters, with little improvements. In September 2022, an ILO–International Trade Union Confederation (ITUC)–International Organisation of Employers (IOE) mission visited Guatemala out of concern for the lack of meaningful action on the road map, and a one-year priority plan was adopted in order to focus the Government on the most pressing issues. Unfortunately, those issues have not been completed. For example, violence and impunity remain a very serious problem despite constant demands on the Government to address this urgency. Just ten months ago, 45-year-old Hugo Eduardo Gamero González, disputes secretary of the National Port Workers’ Union (SINEPORT), was murdered. He is only the most recent of the over 100 trade unionists who have been murdered since 2005.

For years, these brutal attacks have gone unanswered. Instead of launching thorough investigations, we hear the Government now dismissing them as mere consequences of a generalized climate of insecurity in the country. This stance downplays the gravity of the situation, further exposing trade unionists to violence and death in the course of their work.

By refusing to acknowledge the specific targeting of trade union leaders and allowing a culture of impunity for perpetrators, the Government effectively condones these acts of violence and perpetuates a culture of impunity.

Anti-union dismissals in the public and private sector are routine and remain a serious problem. The few reinstatement orders which are granted are appealed for years, meaning there is no effective remedy or dissuasive sanction to address anti-union discrimination.

We acknowledge that the Government established three specialized courts to address the crime of non-compliance with labour and social security resolutions and expect that these courts will bring about meaningful results, including speedy and effective justice for anti-union discrimination cases, in line with the Convention.

Other obstacles also persist, including regarding the registration of trade unions. Unions continue to report that employers often challenge the registration of new unions or appeal registration decisions. There are also several cases in which the trade union registrar of the Ministry of Labour rejects or seriously delays the updating of the list of union members. This impedes the exercise of the rights protected under the Convention resulting in low union density.

With regard to the legislative reforms that the Committee of Experts has requested for many years, there still is no progress. In 2018, there was a tripartite agreement on some of the reforms requested. However, these reforms languished for years. In late 2022, following the ILO–IOE–ITUC joint mission, the Government submitted the bill to Congress for its attention, but the lack of any meaningful effort to seek its passage has meant that the bill has not moved and has no prospects of being adopted before the June 2023 elections. To date, no efforts have been made to address the matter of sectoral unions and the modalities of sectoral collective bargaining. With this, there are no possibilities for negotiating above the enterprise level.

Regarding the media campaign, there has been no real commitment by the Government to advance an effective, forceful, and convincing national campaign to reverse union stigmatization and instead promote the free exercise of unionization and eradicate violence against our comrades.

Finally, the efforts that have been made to create opportunities for dialogue with the support of the ILO are not actually leading to results due to an apparent lack of real political will for systemic change.

The Worker members share the Committee of Experts’ statement – and I quote – “expressing its concern at the persistence in law and practice of serious violations of the Convention”. The Committee is also right to note, regarding the priority plan, that it is “vitally important that the expectations generated by the identification of such actions translate into tangible progress.” Clearly, the Government has not met these expectations and we are deeply concerned that the comments of the Government here today give us little hope of tangible progress anytime soon.

Employer members – This is a matter which we have been addressing for a long time. In 2012, a complaint was filed under article 26 of the ILO Constitution and was closed in 2018.

Furthermore, in the course of the follow-up evaluation, in 2013 the Governing Body approved a Memorandum of Understanding at the highest level. In 2014, the outlines of a road map were approved. In 2015, nine key indicators for follow-up of the road map were specifically incorporated. In 2017, a tripartite agreement was reached on four of the six legislative issues. In 2018, the National Tripartite Committee on Labour Relations and Freedom of Association was established, a very important element, through which additional national agreements were adopted, leading to the creation of three subcommittees which are discussing various aspects, including the international matters with which we are occupied here.

At the closure of the complaint it was finally agreed, from 2020, to have a programme of technical assistance and, in particular the Governing Body requested follow-up action in relation to this programme with evaluation of the indicators established in the road map. We consider that there has been compliance with this since reports and attachments in this regard have been presented.

Furthermore, a joint ILO-IOE-ITUC mission took place in September 2022 to follow up on the technical cooperation provided by the ILO and in which, in conjunction with the National Tripartite Committee, a series of priority actions were identified to give a fresh boost to this process.

We would like it to be placed on record that Guatemala has followed up on the commitments made with regard to the various ILO bodies.

Firstly, we would like to thank the Government for sending the requested reports, which describe the action taken to reduce the violence which is such a concern for us, in particular regarding the 98 cases involving deaths submitted in the last nearly 20 years, including 2022. I would like to make this clear, because there are times when this figure is understood as applying to this year or last year. There are 26 cases which have yielded convictions, ten resulting in acquittals and one resulting in a security measure, reflected in the follow-up indicator for matters related to the Convention. We are also grateful for the reports on the action taken by the Government with regard to the National Congress for aligning the legislation in the form which was pledged. There is also the new registration of 29 trade union organizations and the increase in the budget to reinforce investigation and judicial bodies which aim to ensure that the exercise of trade union freedoms and rights in the country are protected in law and in practice.

However, we Employer members categorically repudiate all the acts of violence which have been reported and we deeply regret the deaths which have been reported. Let us hope that all efforts made to investigate and punish the threats and acts of violence cited in the report will lead to genuine change in the prevailing situation. In this regard, and without swerving from our position, we are bound to recognize that in recent years fatalities have decreased in practice, which should encourage the Government to continue working along the path which has been defined.

We observe that the technical assistance and the action taken by the state institutions in Guatemala have not been in vain, and although we would like to see more and better results, we are bound to recognize that progress has been made with regard to the investigation and punishment of crimes against trade unionists and we would hope that this will be extended to the rest of society.

It is also important to bear in mind that although many forms of violence have continued in Guatemala, the national Government has taken various forms of action in line with its commitments, and the participation and commitments of the National Tripartite Committee, and has implemented various policies. Moreover, as we have said on other occasions, regrettably this form of violence does not exclusively involve trade union leaders; most citizens in Guatemala are exposed to it too.

This is not a justification; it is a reality which we cannot conceal. We are dealing with a social phenomenon with its own origin and nature and it still needs to be addressed.

Although – and I stress – this circumstance in no way justifies any acts of violence, we should also not lose sight of the widespread situation of violence since this constitutes an important element of judgement as regards the findings of this Committee.

Under these conditions, let us vote for the Government to continue adopting decisive and effective measures for promoting a climate of non-violence in the country.

I have heard that a representative of the workers said that another UN organization had identified violations of the principle of freedom of association and the right to strike. We would like to recall the position of the Employers, namely that the subject of strike action is not a matter related to the Convention and that this should be addressed in accordance with the legislation in force in each country.

Having made this clarification, we also note, with regard to protection for trade unionists, that this has been reinforced, as already explained by the Government representatives, and all follow-up action related to this has been recorded in the reports.

The Committee of Experts indicated in its comments that, indeed, the Government of Guatemala submitted the Bill on labour matters to the National Congress in timely fashion and in line with agreements.

In this regard, nobody is convinced, obviously, that this Bill has been passed, but we are face to face with the Government and on the basis of the autonomy of the National Congress, we hope that, in line with its internal procedures, this Bill will be debated and, if appropriate, approved. This is so important and corresponds to one of the commitments taken by the Government, and we understand that it has fulfilled them. If only action can be taken to speed things up!

With regard to social dialogue, we can see that the National Tripartite Committee is functioning as established by the road map. We observe that there is a set of conditions and we do regret that not all rulings issued by the judiciary have determined responsibility. But, as we have already said on many occasions, we do not agree with the opinion of the Committee of Experts that any ruling that acquits a suspect signifies a denial of justice.

The justice system involves implementing processes which correspond to the information available and in this case determining responsibility on the part of whoever is concerned. It seems to me that this has been taken into account by the Government so far, with the support of all actions taken in a highly relevant manner with ILO assistance.

I observe that the Government, which is truly facing a situation which we all condemn and feel concern about, has given evidence of interest in accepting all the mechanisms which have been suggested to it. Here we often witness denial of the facts, refusal of support and assistance, and denial of the truth. From our perspective, we are encouraged to see that the Government is maintaining the intention of doing all that is necessary to quell the violence and regrettable acts referred to by the report.

Worker member, Guatemala – This is in memory of our comrade, the recently deceased Mr Carlos Mancilla.

Several years after implementation of the road map began, the overall balance is that none of the commitments made by the Government has been fulfilled. Anti-union policies in Guatemala have intensified. Acts of repression, violence and persecution against trade unionists and the destruction of trade unions are constant. Blacklists and articles in the social media continue to be produced by people linked to certain private sectors which foment hate, including its ultimate expression in the form of murders of our trade unionist comrades. One of the most recent cases of murder was that of Mr Hugo Eduardo Gamero González, disputes secretary of the National Port Workers’ Union (SINEPORT), in Santo de Castilla, Puerto Barrios, Izabal, which the Committee of Experts referred to in its 2022 report.

We have received complaints from our men and women comrades regarding the actions of prosecutors and/or units of the Public Prosecutor’s Office in the provinces, in which in almost all cases when attacks against trade unionists are denounced they do not examine them, even though this is one of the key objectives of Instruction No. 1-2015, with analysis of the context at the time of the attacks needing to be taken into account.

These facts were reported to the unit at the Public Prosecutor’s Office which investigates attacks on trade unionists. We are waiting for the corresponding reply. In the end, the more than 100 cases of attacks on, and murders of, our trade union comrades which have been documented and reported to this Committee have not been resolved. Nor has a regulatory and institutional framework for the protection of workers against the crimes committed been constructed, much less any progress made in something as simple as the implementation of awareness-raising campaigns regarding the right to freedom of association and collective bargaining at the national level. What could be the reasons for the ministerial authorities not honouring their commitments?

Although it is true that the National Tripartite Committee on Labour Relations and Freedom of Association has been established, it meets without any clear objectives or time frames; we continue to be highly critical. Other matters of tripartite interest should be addressed and discussed and agreement reached on them in the above-mentioned body but in practice this does not happen. Here are two examples of this shortcoming. For 2023, the executive authority, at the behest of the Ministry of Labour, approved wages differentiated by region without having exhausted the procedure of the National Tripartite Committee, and the same things happened with the implementing regulations for the application of the Part-Time Work Convention, 1994 (No. 175). As we have reported on countless occasions, these cases end up undermining the workers, especially in urban and rural areas with major pockets of poverty and extreme poverty, with the associated implications. It should be recalled that this important body was established with the tripartite approval and support of the ILO, it being recognized by a Ministerial Decision, with the undertaking that it would be duly underpinned by a decree-law.

There is also the issue of the establishment of industry trade unions, which corresponds to long-standing observations of the Committee of Experts. These are another two examples of non-compliance. The road map does not give evidence of progress; on the contrary, there have been attacks on trade unions, trade unionists and in particular collective bargaining. Another example: regarding the administrative process for the approval of collective agreements, the criteria applied have been made more stringent to the point of undermining such agreements, even though the employers and workers have confirmed their wish to validate the agreements. The Ministry of Labour sent a note, dated 1 June 2023, reporting on the mechanism that governs the administrative processing of the approval of collective agreements in the public sector, even though everyone knows that these criteria are the ones which they have been applying for over two years.

This subject is constantly subject to questioning by the trade unions, on account of the adverse implications for the workers in general. Moreover, it violates concepts of the Constitution, which enshrines collective bargaining as a means for improving the minimum social rights of men and women workers. The Ministry of Labour as chief guarantor of labour standards has become the main obstacle to the positive development of the very processes of negotiation and the right to organize. So there are serious steps backwards, especially regarding freedom of association and collective bargaining, in total collusion with the employers.

On the contrary, there are other proposals for labour legislation which are regressive for the workers and ultimately for the country, where there has not been due consultation with the unions at the time they were being prepared. For example, reforms of the Penal Code have been proposed aimed at including provisions which penalize collective bargaining and criminalize trade union activity and administration.

On the other hand, the judiciary has prepared the proposal for the Code of Labour and Social Security Procedure, which even reveals major backward steps with regard to the current labour legislation. Also being processed and under discussion is a law which criminalizes social and trade union protests. We are in a situation of total defencelessness.

Lastly, it should also be noted that in a few days our country will be electing new national authorities, which will take up office in January 2024. The general socio-political environment is totally uncertain for the workers and the outlook is particularly grim for the Guatemalan trade union movement. We have serious doubts as to whether the new governing authorities will assume the responsibility for implementing the road map. Faced with this complex scenario, we continue to insist that there is an urgent need to decide on the immediate setting up of a commission of inquiry for Guatemala.

Employer member, Guatemala – Firstly, we would like to express our heartfelt condolences to the workers, and especially Mr Francisco Mendoza, Mr Julio Coj and Mr Luis López, regarding the death of Mr Carlos Mancilla, a recognized trade unionist, a personal friend and a fighter for the workers’ cause, who was frequently present at this Conference.

As mentioned by the Workers’ spokesperson, his decease is without any doubt an enormous loss for the international workers, for our comrades in Guatemala and for all of us who had the good fortune to share the tripartite forums with him, and to whom we owe the commitment to continue working for a country which has more justice and opportunities for all.

As I have done frequently, I would like to start by referring to the support and patience which the Conference Committee and the Office have shown to Guatemala in recent years. As chairperson of the National Tripartite Committee on Labour Relations and Freedom of Association, I would also like to thank the Government of my country and the workers for their participation in, and support for, the aforementioned Committee.

I would like to reiterate the importance of the road map launched in 2014 and the absolute commitment of the sector that I present to implementing it.

I would also reiterate the commitment of the employers’ sector to support all complaints made by the workers in the context of the road map, on the basis of the law, the rejection of any form of violence and our solidarity with the victims.

I do categorically reject the accusation levelled at the employers of promoting hatred and violence. These assertions appear to be unfounded. Not only are they arbitrary, they also do not correspond to the spirit of respect which should characterize tripartite relations.

Even though there certainly remains a lot to be done on the implementation of the road map, we cannot and should not fail to recognize the progress which has been made.

Firstly, the very institution of the National Tripartite Committee and the opportunity for social dialogue which it gives us. This is a forum of inestimable value which also calls for willpower and courage on the part of the parties to reach compromises, recognize challenges and demand results but also to recognize progress made. We can do more but we need the will to do so, to participate and to take advantage of the opportunity given us.

For example, we are inspired to see the work ethic of the subcommittees, with commitment, effort and openness to agreement which, alas, we have not been able to match within the National Tripartite Committee. I must also refer to the readiness of the government institutions to honour the commitments of the road map. These include the following.

In the Supreme Court and the Constitutional Court: the establishment of a Pluripersonal Court of Penal Resolution for offences of non-compliance in labour matters and the clear support of the Constitutional Court through participation in tripartite meetings and its openness to attending to the workers.

At the Ministry of Labour and Social Welfare: the reactivation of the Tripartite Advisory Board on Labour Inspection and the submission of a Bill to the National Congress institutionalizing the National Tripartite Committee.

At the Public Prosecutor’s Office: the establishment of a special prosecution section and a significant increase in the institutional budget for dealing with crimes against trade union leaders and members. In addition, the Ministry of the Interior has increased the budget for the provision of security for workers. The Special Prosecutor’s Office dealing with crimes against judicial officials and trade unionists has been strengthened through ongoing training on international labour standards and dissemination of Instruction No. 1-2015 of the Public Prosecutor’s Office concerning the handling of complaints of anti-union violence.

Note should also be taken of the openness and willingness of the Attorney-General to meet at least three times this year with the National Tripartite Committee, and the instructions to her team to hold as many meetings as requested by the workers to address certain cases.

As regards complaints of violence against trade union leaders and members: there is absolute consensus on condemning any form of violence. We reiterate our solidarity with, and unconditional support for, the victims and the workers in general; they define the contribution we can make.

Having said this, I think we should note that the first of the 98 cases referred to above dates from 2004, which gives an idea of the complexity of the investigations into events that occurred nearly 20 years ago. I repeat: no death can be justified. Justice must be sought and these events are categorically repudiated by us.

In these 98 cases, there have been 37 judgments handed down, of which 26 are convictions. As already mentioned, there are 46 cases in which the investigation process has been exhausted and closure measures have been adopted, but this in no way prevents the reopening of the cases concerned in the event of new evidence coming to light.

It also seems to me that, with such a sensitive subject as this, we cannot merely deal in absolute numbers accumulated; we must also analyse the trends. In recent years, the murder rate decreased from around 48 per 100,000 inhabitants to less than 20 per 100,000 inhabitants last year. In that situation, in the situation facing all Guatemalans, it should be noted that regarding the 98 cases reported since 2004, we can only express our regret and reiterate our absolute repudiation of any act of violence, and we also note that there have only been two cases involving deaths in the last two years.

Are these results acceptable? Of course not. We still have so much progress to make.

Every single life is important and we must all work together to protect the integrity of each individual and indicate our absolute rejection of any acts of intimidation. Here the workers have, and will continue to have, our solidarity and support.

My message today is that we should continue to work together in social dialogue but without clinging to a past from which we must move on, always demanding social justice. At the same time we must recognize the enormous challenges which we still face. We also urge you strongly to recognize and not deny the progress that we have made. I do not deny, I accept, that much remains to be done but we are on the right path.

We succeeded in signing the road map in 2014 and so I invite you to reflect.

Before 2014, did we have an established forum for social dialogue?

Before 2014, did we have a Special Prosecutor’s Office dealing with crimes against trade unionists?

Before 2014, did we have a special court dealing with non-compliance in labour matters in order to enforce reinstatement orders?

Before 2014, did we have the opening and exposure of the highest judicial institutions to address trade union concerns?

Before 2014, did we have three meetings in the last eight months with the Attorney-General and the offer to hold all meetings necessary with the trade unions to provide any explanations requested in each of the cases?

In a country where almost 90 per cent of murders go unpunished, can we say to these persons that we have not obtained justice but that they do not have a Special Prosecutor’s Office devoted to resolving these cases and that, having obtained 37 judgments in 98 cases, this does not signify some modest progress in the justice system?

Even though the judicial resolution and the conviction of the perpetrators is important beyond any doubt, should we not recognize that since 2004 there has been a significant reduction in acts of anti-union violence?

Clearly, we all want results but it is pointless, it is neither fair nor constructive to fail to recognize the progress that has been achieved. Where results exist, it is not about recognizing them only when they are the results we want. The right to demand results also requires a commitment to decisive, ongoing participation and the political will to do so.

We are perhaps moving very slowly but we are continuing to take steps. The Employer members will remain at the table fully willing to move forward and support all sectors on the path which we still have to take.

I will finish by referring to the responsibility that we owe to our sectors, to our country and to all Guatemalans. We are obliged – I repeat, obliged – to understand each other and seek better opportunities for further action.

Government administrations pass, and in January 2024 we will have a new Government, but the workers’ and employers’ sectors remain.

For my part and for the sector that I represent, I offer our full readiness to fulfil this responsibility with the sole request that we do not stop moving forward together with decisiveness and willpower to implement not only the road map but also the agreements that our country so badly needs. It is our responsibility and obligation to do so and we cannot stop working towards this end.

Government member, Sweden – I speak on behalf of the European Union (EU) and its Member States. The candidate countries Bosnia and Herzegovina, North Macedonia, Republic of Moldova, Montenegro, and the EFTA country Norway, Member of the European Economic Area, align themselves with this statement. The EU and its Member States are committed to the promotion, protection, respect and fulfilment of human rights, including labour rights such as the right to organize and freedom of association. We actively promote the universal ratification and implementation of the fundamental international labour standards. We support the ILO in its indispensable role to develop, promote and supervise the application of ratified international labour standards and of fundamental Conventions in particular.

We wish to recall the commitment undertaken by Guatemala under the trade and sustainable development chapter of the EU-Central America Association Agreement to effectively implement in law and in practice the fundamental ILO Conventions. The EU and its Member States continue to follow the situation in Guatemala very closely. We reiterate our deep concern about the human rights situation, including labour rights, and note a persistent lack of progress on reforms. We fully echo the Committee of Experts’ deep concern about the allegations of a new case of murder and other acts of anti-union violence committed in 2022, the persistence of a high degree of impunity and weak protection measures. We welcome the Government’s intention to continue the implementation of the road map adopted in October 2013. However, we stress that intensified efforts are needed to fully implement the road map in consultation with the social partners and in accordance with the series of priority actions identified by the joint mission of the ILO, IOE and ITUC undertaken in September 2022. It is of the utmost importance that further efforts translate into tangible progress in the application of the Convention.

The EU and its Member States condemn the persistent and serious acts of general violence, the violence against trade union leaders and members, including murders and physical aggression, and the culture of impunity that prevails. We call on the Government to investigate all acts of violence against trade union leaders and members with the aim of determining responsibility and punishing both the perpetrators and the instigators of these acts, taking the victims’ trade union activities fully into consideration in the investigations.

In line with the Committee of Experts, we continue to note with concern difficulties in clearing up long-standing murder cases and other acts of anti-union violence. It is regrettable that the majority of the murders of trade unionists have not yet resulted in convictions and that limited information on identification and punishment of the instigators has been provided. We urge the Government to strengthen the prevention, protection and response mechanisms in respect of threats and attacks against trade union officials and activists. In the event of failure, this situation is likely to continue, if not to become worse.

Despite numerous calls from the Conference Committee, the Government has yet not introduced the necessary amendments to several sections of the Labour Code and Penal Code to secure the application of the Convention. We note with concern the continued challenges related to the process of trade union registration, criteria for engaging as a trade union leader, obstacles to the right to strike and limitations to the freedom of association in the public sector.

We again urge the Government to adopt, without delay, the reforms that were submitted by tripartite consensus to the Congress of the Republic and to make progress in the revision of the legislation relating to sectoral trade unions and the conditions for strike ballots.

The EU and its Member States will continue to follow and analyse the situation and remain committed to our close cooperation and partnership with Guatemala in the fulfilment of all its obligations under ILO Conventions, with a specific focus on fundamental Conventions such as this Convention.

The EU reaffirms its commitment to continue cooperating with Guatemala through the ongoing EU-financed technical assistance programme, which is implemented by the ILO. Close cooperation will continue with the ILO and the national tripartite constituents to achieve the objectives of this technical assistance programme.

Government member, Colombia, speaking on behalf of a significant majority of Latin American and Caribbean countries – We are grateful for the information that the Government of Guatemala has kindly submitted today to this Committee on the application of the Convention. We recall that the Guatemalan Government is required to submit information on this same Convention to the Governing Body at its October/November sessions for the three-year duration of the technical cooperation programme entitled “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards”, for which funding was requested in accordance with the decision adopted in October/November 2020 (GB.340/INS/10).

We acknowledge the Guatemalan Government’s call, made during the presentation of the first and second annual reports on the implementation of this programme, to other donors to make financial and technical contributions to strengthen national resources and efforts for the implementation of the technical cooperation programme. The actions referred to today before this Committee have been financed with the Guatemalan Government’s own funds and with funds allocated by the Office from other programmes.

A significant majority of Latin American and Caribbean countries recognize the commitment of the Guatemalan constituents to strengthen the processes of negotiating and reaching agreements within the National Tripartite Committee and its subcommittees, prioritizing social dialogue and respect for international labour standards.

We encourage the authorities of the three branches of the State of Guatemala to continue their efforts, commitments and progress in relation to the road map, to consolidate social dialogue, to continue the work carried out so far by the National Tripartite Committee and to ensure the observance of the Convention.

A significant majority of countries in Latin America and the Caribbean note that the Government of Guatemala is again being examined in several areas of this Organization’s standards supervisory system. The simultaneous application of mechanisms to deal with the same allegations concerning one country could weaken the functioning of the ILO supervisory bodies.

Employer member, Colombia – First of all, the Employers’ group strongly rejects all acts of anti-union violence. We deeply regret the deaths reported in the cases under discussion. In this regard, it is important to note that, starting in 2020, it was agreed that Guatemala would have a technical assistance programme to support follow-up on the road map.

Indeed, this technical assistance has borne fruit, and although it is always desirable to have better results and more resources, it is undoubtedly clear that there have been achievements in terms of investigation and punishment in the cases of murders of trade unionists. These achievements have been translated into strategies for the prevention of further criminal conduct of an anti-union nature.

Secondly, the Committee of Experts refers to impunity with respect to resolution and convictions in the cases analysed in Guatemala. With regard to this issue, we consider that the Committee should not consider that justice only operates when convictions are secured; forms of justice also include dismissal, preclusion, closure of the investigation and acquittal, if this can be understood as the guarantee that citizens have of obtaining reasonable and timely responses from independent authorities in relation to allegations made.

Hence, we look favourably upon the improvements made regarding investigations, trials and arrest warrants by the Public Prosecutor’s Office and the judiciary. We stress that the Guatemalan judicial bodies are autonomous and independent and today have greater capacity and technical knowledge than in previous years. It is these bodies, and not the Government or the employers, which have carried out the relevant investigations, which have concluded that some cases correspond to other forms and dynamics of violence.

Thirdly, on social dialogue in Guatemala, with the support of the ILO, tripartite dialogue has been developed further. Tripartism has been consolidated through the holding of ongoing meetings of the National Tripartite Committee on Labour Relations and Freedom of Association, as well as in different departments of the Public Prosecutor’s Office. Representatives of trade unions and employers’ organizations participate in these forums on a continuing basis.

It should also be noted that the Government recently submitted to the legislature a standards reform Bill that had undergone consultation with the social partners in order to bring the legislation into line with international standards.

Accordingly, we consider that the Government cannot guarantee, at least not in such a short time, results that do not depend on the executive branch but rather on a democratic, autonomous and independent body such as the National Congress of Guatemala.

Lastly, we invite the Government, workers and employers to continue along the path of social dialogue and negotiation, which is, in the end, the path to reconciliation.

Worker member, Colombia – Anti-union violence in Guatemala has persisted over the years and, according to the latest reports, this situation has worsened significantly, as evidenced by the recent murder of comrade Mr Hugo Eduardo Gamero González, who served as disputes secretary of the workers’ union in a port enterprise, as stated in the report of the Committee of Experts in 2022.

This murder adds to the more than 100 cases of fellow Guatemalan trade unionists who have been victims of anti-union violations that have gone unpunished.

In its report, the Committee of Experts requested the Government to investigate, without delay, all acts of violence against trade union leaders in the exercise of their activities, as well as to provide effective protection to trade union leaders at risk.

However, despite the Government’s reports on the progress in the prosecutions of the murders of our comrades, on the significant increase in the budget of the Special Prosecutor’s Office dealing with these crimes and on the protection programme, the truth is that these measures have not been sufficient to guarantee the due exercise of the right to freedom of association.

In this regard, it is worth highlighting that the Committee of Experts recalled in its report on the principle of freedom of association in relation to this case that “trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists, and that it is for governments to ensure that this principle is respected.”

We therefore urge the Guatemalan Government to comply with this mandate, guaranteeing the free exercise of the right to freedom of association and resolving via the competent authorities the murders, both long ago and more recent, of trade union leaders who have been victims of acts of violence, so that there is effective justice for their families and the Guatemalan trade union movement.

In this context, and in the interest of preventing any further acts of anti-union violence, we urge the Government to provide adequate protection to all trade union leaders and give fresh momentum to implementing the road map adopted in 2013.

Employer member, Honduras – We are once again surprised that this year Guatemala is once again being called for examination under the Convention, since, as is well known in this room, a technical assistance programme was established in 2020 for this country and the Governing Body requested follow-up to this technical assistance programme and an evaluation of the indicators in the road map.

Without prejudice to the above, we can state that: (1) we regret the widespread violence in Guatemala, as it causes suffering for all Guatemalans, but we have seen progress in the progressive and sustainable intervention of the Public Prosecutor’s Office for the investigation and punishment of the deaths that have been reported; (2) we have seen progress in the implementation of the road map thanks to social dialogue and tripartism, but it is important to point out again that all sectors must participate to ensure the progress and the success of the roadmap; and (3) we have seen progress in the discussions on legislative reform, which takes time and a lot of discussion, but we consider that it is on the right track and therefore we urge the sectors to maintain social dialogue to achieve the approval of this legislation with the support of the ILO.

We call on all sectors to continue with faith and hope, and with the support of the ILO, to make effective progress on the road map and sustain tripartite social dialogue in order to maintain social peace in Guatemala. All we ask of this Committee is to support the sectors in order to achieve the objectives of the road map, which received tripartite approval.

Worker member, Peru – We see in the case of Guatemala a very serious situation, which trade union leaders have been reporting for years without their country’s authorities finding an effective solution and which has now been reiterated to this Committee by members of the trade union delegation from that country.

Justice delayed is justice denied. The Government’s unwillingness to guarantee the safety and lives of trade unionists, whose human rights to life and to the free exercise of freedom of association are being violated, is a cause for concern. All the signs suggest that crimes and threats against the lives of trade unionists continue without timely action by the State through its institutions of protection. Attempts on the lives of trade union leaders in Guatemala, without effective action by the Government, are a serious violation of the Convention and of the Universal Declaration of Human Rights itself.

Impunity is a hard blow to the ranks of unionized workers, who begin to perceive that exercising the right to freedom of association will put their lives at permanent risk, and this affects the very performance of the trade union function to take action for the benefit of the working class. We also consider these facts to be serious because, despite the countless occasions on which the ILO supervisory bodies have denounced these crimes and the lack of timely action, their conclusions and recommendations have not been taken into account.

With elections due to take place in a few days in Guatemala and new authorities taking office, we urge the Committee to send an official communication announcing the visit of a commission of inquiry which the trade union delegation has called for and which we support.

Government member, Switzerland – Switzerland is concerned about the climate of violence and repression against trade unionists in Guatemala. The threats and acts of violence to which the representatives of workers’ organizations are subjected constitute serious violations of the fundamental rights recognized under the Convention. Switzerland condemns these acts and recalls that workers must be able to exercise their trade union rights without their physical or mental integrity being harmed. Switzerland has taken note of the increase in the budget allocated to the Special Prosecutor’s Office dealing with crimes against judicial officials and trade unionists. We wish to stress the importance of access to independent justice, free of any restrictions.

Switzerland also recalls that workers must be able to form associations freely, without this process being hindered. In this respect, we urge the Guatemalan Government to take the necessary measures to fully guarantee the right to freedom of association.

The Government of Switzerland takes note of the information provided by Guatemala, in particular the strengthening of prevention and protection measures against anti-union violence and the increase in investigations and judicial decisions on cases relating to the deaths of trade union representatives. We encourage the Government of Guatemala to continue and strengthen its efforts to guarantee the safety of trade unionists in the exercise of their rights. Switzerland expresses the hope that the priority actions identified by the joint mission of the ILO, IOE and ITUC will be implemented by the Government in order to ensure the application of the Convention in law and in practice.

Employer member, Costa Rica – On this occasion, we consider it important to support and highlight the appropriate steps that the Government of Guatemala, in the framework of social dialogue, has taken.

As we have previously indicated, we know that this tool has successful results leading to the resolution of labour, social and economic issues. Guatemala has managed to find practical and real solutions to the problems it faces, while following the suggestions of the ILO Committee of Experts and Governing Body.

We highlight the legislative actions that the Government of Guatemala has promoted throughout recent years, such as, first, the request of the National Tripartite Committee for the establishment of such a forum by law, which should be considered a significant achievement. Second, there has been follow-up to the recommendation of the joint ILO-IOE-ITUC mission. Third, the strengthening of this tripartite body through a national law, thereby making it a forum for dialogue that works to promote compliance with international commitments, guarantees its sustainability over time, and affords it legal certainty. This Tripartite Committee is, in turn, composed of three subcommittees that have made great progress in this area: the Subcommittee on the Implementation of the Road Map, the Subcommittee on Mediation and Dispute Settlement, and the Subcommittee on Legislation and Labour Policy. Fourth, the discussions being held on the legislative reform concerning branch trade unions and sectoral bargaining, in accordance with the tripartite agreements of March and August 2018, taking account of the provisions set out in the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). This is the information the Government has been providing in line with the request made.

It is with these types of actions that the social partners, through social dialogue and with ILO technical assistance, hope to align national and international legislation, and strengthen the institutional framework of the National Tripartite Committee on Labour Relations and Freedom of Association.

We highlight the advances made in the legislative reform, as they are positive, provide legal certainty to all parties and have the backing of the sectors. We know that making changes to the legal system, particularly where this involves laws, is a slow process requiring significant dialogue, proposals, agreements and solutions for the greater good. It is nonetheless better to do it slowly and properly, since creating laws aimed only at seeking a quick and easy solution to extremely delicate problems creates the risk of developing standards that have no practical application.

We urge the Government of Guatemala to pursue all the actions it has been taking until now in good faith and with clear will, accompanied by one of the most important tools for making real sustainable progress: social dialogue.

Government member, Canada – Freedom of association, as understood and envisaged in the Convention, may only be effectively exercised in a climate free from all forms of violence, intimidation or threats.

It is incumbent on governments to ensure respect of this principle. However, for over 15 years, the Committee of Experts, the Governing Body and the Conference Committee have examined allegations of serious acts of violence against Guatemalan trade union leaders, including allegations of their murders.

While thanking the Government of Guatemala for the new information provided to the Committee, we nevertheless wish to recall that all acts of violence against leaders of trade unions and associations must be properly investigated and, where relevant, the perpetrators of these acts must be penalized, in order to bring an end to the climate of impunity in Guatemala and to ensure real protection of workers and their representatives.

Canada appreciates the results of the joint mission led by the ILO, IOE and ITUC, with a view to the follow-up to the road map adopted by the Government of Guatemala in 2013. Canada notes that this mission has given fresh momentum to the road map, including with regard to the labour law reform that the Committee of Experts has been recommending for over ten years.

While recognizing the efforts of the Guatemalan Government and the social partners over recent years, it is nonetheless clear that much work remains to be done, particularly to end impunity and violence against trade union leaders.

Canada requests the Government of Guatemala to prioritize and continue to work towards effective protection of all trade union leaders and workers in a situation of risk, in order to prevent all anti-union acts of violence, to work towards tangible progress concerning the revision of the legislation on sectoral trade unions and conditions to vote for a strike, and, lastly, to work on launching campaigns to raise awareness of the right to freedom of association, developed in consultation with the social partners.

Canada also calls for effective protection of trade union leaders and strongly encourages the Government of Guatemala to intensify its efforts to bring to justice the perpetrators of crimes against trade union leaders as soon as possible, and in accordance with the principles of the rule of law.

We strongly encourage the Government of Guatemala to continue to work closely with the ILO and to request its technical assistance when needed.

Worker member, Bolivarian Republic of Venezuela – We have received and noted the information from the Worker delegate of Guatemala on the observations presented by the whole autonomous group of workers of this country on the repeated failure to implement the road map and the tripartite agreement signed by the Government of Guatemala, and the employers’ and workers’ sectors, on Conventions Nos 87, 98 and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

In this regard, the workers’ delegation of the Bolivarian Socialist Workers’ Confederation (CBST) of the Bolivarian Republic of Venezuela would like to request that the ILO accelerate its actions to continue with the technical assistance and cooperation programme and make progress with the road map. It is important to mention that, despite the efforts made by the Office, since the tripartite agreement was signed, the events that led to its establishment have increased exponentially. There have been over 100 murders of trade union leaders which have not been resolved by the Guatemalan authorities. Threats to trade union leaders and certain members of the National Tripartite Committee have also risen. The workers of the Bolivarian Republic of Venezuela express their solidarity with the workers of Guatemala and request the ILO’s decisive action through a commission of inquiry to put an end to this serious situation.

Government member, United States of America – This is the Conference Committee’s second time discussing the Government of Guatemala’s compliance with the Convention since closure of the long-standing article 26 complaint at the November 2018 Governing Body. We thank the Government for providing additional information to this Committee in response to the Committee of Experts’ recent observations and last year’s discussion.

The Government reports on various measures it has taken to address long-standing issues and recommendations, particularly efforts to implement the 2013 road map, the March 2018 tripartite agreement, and the follow-up to the September 2022 tripartite joint mission to the country.

We note that the Government reports a significant increase in the budget allotted to the Office of the Special Prosecutor for Crimes against Judicial Officials and Trade Unionists, continued coordination with the Public Prosecutor’s Office to provide protective measures to trade unionists at risk, and the roll out of improved procedures for issuing union credentials. We welcome these measures as initial, partial steps.

At the same time, we remain deeply troubled by the lack of progress on key issues and recommendations. We note that the Committee of Experts expresses concern regarding the persistence in law and practice of serious violations of the Convention. The Committee of Experts regrets that, since 2005, it has been examining allegations of serious acts of violence against trade union leaders and members, including numerous murders and situations of impunity.

The Committee of Experts also notes lack of progress in legislative amendments needed to remove obstacles to workers’ right to strike, facilitate the establishment of sectoral trade unions, and allow non-Guatemalan workers to be elected trade union leaders, among others.

We call on the Government to fully implement all outstanding recommendations from the various ILO supervisory bodies. To that end, we urge immediate and effective action to: improve investigative processes and increase prosecutions of those responsible for acts of violence and murder against trade unionists; recognize threats, intimidation, and harassment against trade unionists as acts of violence; create a safe, enabling environment that allows all workers to freely exercise their rights, including strengthening of mechanisms to protect workers’ rights; adopt legislation to bring its laws in line with international labour standards on freedom of association and the right to collective bargaining, including by institutionalizing the National Tripartite Committee, and to give effect to the decision on the right to strike reached by tripartite consensus; continue to improve the system for registering trade unions and collective bargaining agreements; and ensure that remedies following anti-union dismissals or retaliation are enforced without delay.

This will require the Government to provide the labour inspectorate with additional resources to effectively operate in all regions of the country, particularly in the agriculture and maquila sectors, where labour law violations related to freedom of association and the right to collective bargaining persist.

The United States of America remains deeply committed to working with the Government to advance internationally recognized workers’ rights in Guatemala, including through the joint Department of Labor and the Ministry of Labour and Social Welfare (MTPS) work plan, as well as through Department of Labor funded projects to help improve labour law enforcement. We also urge the Government to continue working in close cooperation with the ILO, social partners, and other relevant partners.

Employer member, Plurinational State of Bolivia – Since 2000, this Committee has been repeatedly discussing the case of Guatemala for failure to implement the Convention. In such circumstances, it goes without saying that it is totally unacceptable that such murders can occur. Of course, those responsible for these criminal acts must be penalized with the full force of the law.

However, it is also clear that such a sensitive situation must lead to a comprehensive policy to prevent any form of crime that not only involves establishing the number of convictions brought but also addressing the origins of the problem by determining the root causes of these acts. In this regard, there are indicators showing that Guatemala has made significant progress in the adoption of measures aimed at affording greater protection to trade union leaders. For example, specialized bodies are in place for the protection of trade union leaders, not only at the level of the prosecution service for investigative purposes, but also for prevention and protection through the Ministry of the Interior. Such measures are not common in other countries but we understand that they were developed in Guatemala precisely to respond to the need to advance in the fight against criminal acts against union leaders.

We must be aware that, although it would be ideal, there is no magic formula to end crime in general from one day to the next. It is rather the result of a process that, for the most part, spans a long period of time in order to raise the awareness of the whole population.

I am sure that we all want Guatemala to achieve all the objectives that have been set in this regard. We must therefore encourage the Guatemalan authorities and all those involved to continue to make progress in the fight against all the criminal acts that gave rise to the repeated observations on the application of the Convention.

Worker member, Spain – I am also speaking on behalf of the Netherlands Trade Union Confederation and the Trades Union Congress of the United Kingdom.

Guatemala, regrettably, has become a recurrent case before this Committee in recent decades. As all parties have mentioned here, the murder of trade unionists represents the peak of an anti-union sentiment in Guatemala that is rooted in the absence of freedom of association. As set out in the report of the Committee of Experts, in addition to violence and high levels of impunity, the violation of freedom of association in Guatemala takes many forms, and I will focus on just one: the lack of compliance with reinstatement orders.

Last year’s joint mission of the ILO, IOE and ITUC confirmed the existence of a combination of legal, institutional and practical factors that hinder the proper functioning of the justice system in respect of anti-union discrimination in general and the enforcement of reinstatement orders in particular.

After discussing the Guatemala case last year, the Committee of Experts was emphatic in its response to the verified anti-union situation in the country, not only deploring and regretting the violence and impunity, but also requesting the Government of Guatemala to adopt measures to “ensure that judicial decisions of reinstatement in employment following anti-union dismissals are enforced without delay”. Nevertheless, the situation in Guatemala has not improved, and there are even workers who have yet to be reinstated in their jobs almost five years after the order was issued. The failure to comply with judicial reinstatement orders is a practice seen in both the private and public sectors, particularly in local government.

I wish to recall that reinstatement forms part of the road map submitted by the Government of Guatemala following consultation with the social partners under the auspices of the ILO.

Specifically, point 7 of the road map states that “it is important and urgent that the rulings of the labour courts are observed and executed”, and the steps contained in the road map include verification of compliance with court rulings by the Reinstatement Verification Unit, with a deadline of 60 days. Those 60 days have passed; in reality, approximately 4,000 days have passed.

Trade unionists in Guatemala, who live with violence and impunity on a daily basis, have demonstrated admirable commitment to seeking solutions to ensure compliance with the Convention. Regrettably, however, the Guatemalan Government’s lack of commitment to complying with and executing reinstatement orders is clear.

We therefore ask the Committee to urge the Government of Guatemala, in the strongest terms, to comply with the provisions of the Convention.

Lastly, I would like to recall that the last time we had the opportunity to talk to our friend and colleague Mr Carlos Mancilla, he told us about the threats made against him and his family. Let us honour his memory and live by his example.

Government member, Dominican Republic – We welcome the Government’s efforts to comply with the Convention as described today by the representative of the Public Prosecutor’s Office, and we urge it to continue to redouble its efforts until it achieves full implementation of the Convention.

Worker member, Republic of Korea – Guatemala and the Republic of Korea have celebrated 60 years of diplomatic relations last year. Guatemala is the largest market for Korean goods in Central America and the textile industry accounts for around 80 per cent of South Korea’s investment in Guatemala. Around 150 textile and garment factories are owned by Koreans. But it is precisely this sector that has seen some of the most serious violations against workers and trade unionists. In 2015, the Korean Federation of Trade Unions (KCTU) and the Korean human rights NGOs jointly conducted field research on human rights and trade union rights violations in Guatemala. At that time, numerous violations were reported including non-payment of wages or paying below the minimum wage, non-payment of social security contributions after deducting from workers, being forced to work for long hours and poor sanitary conditions. In some cases, owners have closed down their factories and reopened under different names and have carried out massive dismissals as a means of evading their legal responsibilities to their workers. However, as seen in the Committee of Experts’ report, these violations of law and infringements of workers’ rights are really persistent until today, including in Korean-owned garment factories. In April of this year, when 300 workers in a Korean-owned factory tried to organize a union, the management began an anti-union campaign and witch-hunt to find the workers who spoke up about their issue to form a union. In another factory, where 40 union members and leaders were fired in 2013 but still not reinstated, the management refused to sign a collective bargaining agreement despite an arbitration court ruling ordering the company to finalize or implement the agreement. Another example is when the workers formed a new union in 2022, and the company refused to grant union leave even though it is guaranteed under the law. The result is that, as it has been extensively reported by the Committee of Experts, the unionization rate in the sector is below 1 per cent and only one collective agreement covering the maquila sector has been known in recent years. The Government must, without delay, fulfil its commitment to the International Labour Organization and cease all obstacles to the exercise of trade union rights and collective bargaining in the maquila sector and to intensify initiatives for the effective promotion of these rights.

Employer member, Panama – As stated by the Minister of the Republic of Guatemala, we have been addressing this matter for some time, and it is therefore a follow-up case in which significant progress has been made that we must acknowledge. In that regard, the Government has clearly expressed its regret at the deaths caused by widespread violence in the country. That widespread violence has not only affected trade unionists but also employers and the general population.

In the midst of that situation, we have witnessed continuing and sustained progress in the investigation of reported cases, as described by the Public Prosecutor’s Office. As a result of those investigations, the Public Prosecutor’s Office handed down 25 judgments in 2020, 28 in 2021 and 37 between 2022 and February 2023. It is important to note that Guatemala is a State based on the rule of law where all persons are subject to the Constitution and the law. The Public Prosecutor’s Office is therefore free to investigate all cases in the country.

Similarly, judicial proceedings have taken place according to the principle of due process, with all parties enjoying evidentiary and adversarial freedom and equality. All rulings have been based on the principles of judicial independence, meaning that they have been handed down by a competent court, based on evidence and the law. We are sure that the Committee of Experts does not wish the executive to influence cases under investigation by the Public Prosecutor’s Office, nor the judiciary to render judgments in favour or against. That would violate the principle of the separation of the powers, which is a fundamental part of the rule of law and life in society.

Through the presence here of representatives of the Public Prosecutor’s Office, the Supreme Court and the Constitutional Court, the Government has demonstrated that it has made significant advances, and so this is a case of progress which should be reflected in the conclusions.

Worker member, Botswana – I speak on behalf of the workers of Botswana and the Commonwealth Trade Union Group aligns to this statement. According to the ITUC Global Rights Index, the climate of violence against trade unionists has earned Guatemala the infamous distinction of being the most dangerous country in the world for trade unionists. The repercussions of Guatemala’s climate of violence against trade unionists extend far beyond its borders. Indeed, the world is watching, and the international community is well aware of the atrocities taking place in Guatemala. Even in Botswana, a country situated thousands of kilometres away, the plight of Guatemalan trade unionists has not gone unnoticed. The news of violence, intimidation, and the denial of basic workers’ rights reverberates throughout the global community, reminding us of the urgency to address this pressing issue. It is a climate where, expressing dissent, advocating for better conditions of work, and fighting for the rights of workers can lead to harassment, threats, and often death.

Furthermore, we must highlight Guatemala’s reiterated violations of the Convention. Every year we hear of serious violations indicated by the Committee of Experts and the Committee. By targeting trade unionists and subjecting them to violence, Guatemala flagrantly disregards the principles enshrined in the Convention. It is not only a breach of its obligations under international law but also a betrayal of the workers who strive for a fair and just society. We call upon the Guatemalan Government to take immediate and effective measures to protect trade unionists, to investigate and prosecute those who are responsible for violence and intimidation, and to create an environment where workers’ rights can be exercised without fear. Finally, the Government must fulfil its commitment to fully implement the ILO road map by introducing safeguards and mechanisms that protect the rights of workers, promote dialogue, and foster a culture of respect for trade unions.

Worker member, United States of America – Once again, this Committee is discussing Guatemala’s ongoing and egregious failure to comply with the Convention. Despite decades of engagement by the ILO’s supervisory mechanisms, technical assistance projects and bilateral engagement by several Member States, Guatemalans continue to place their lives and livelihoods at risk for supporting trade unions. In August 2022, 45-year-old Hugo Eduardo Gamero González, disputes secretary of the National Port Workers’ Union (SINEPORT), was assassinated in a targeted shooting. As has been noted, he is only the latest of over 100 trade unionists to have been murdered since 2005. Beyond the issue of violence, the Government of Guatemala has still not adopted the legislative reforms identified by the Committee of Experts to address barriers to the formation of sectoral trade unions and to guarantee the right of public sector workers to strike.

In addition, anti-union dismissals in the public and private sector remain a serious problem. In the rare cases where judicial orders for re-instatement are retained, they are routinely ignored by employers without consequence. We welcome the renewed focus on completing the established road map that came out of the 2022 ILO–IOE–ITUC joint mission. However, we also caution that over the past 20 years we have seen successive Guatemalan governments commit to a number of road maps and action plans that ultimately went unfulfilled. Therefore, the onus must squarely be on the Government to demonstrate why this time it will be different. In conclusion, we urge this Committee to adopt strong conclusions and recommendations requiring the Government to demonstrate tangible progress and guaranteeing workers the right to freedom of association in Guatemala.

Observer, Public Services International (PSI) – I am speaking on behalf of PSI and the seven Guatemalan public service trade union organizations affiliated to PSI. The case of Guatemala is, as noted by other speakers, a recurrent case in this Committee and has prompted discussion of serious violations of freedom and human rights. We recall that those violations have not been duly addressed or resolved by the various governments of Guatemala in recent years.

On the contrary, since the International Commission against Impunity in Guatemala was expelled from the country on 3 December 2019, there has been a regression, and it has been an even greater uphill struggle for the working class and the Guatemalan people in general. Extreme poverty and migration are exacerbated by persecution of independent media that report on corruption and the reality on the ground, and against the few judges and prosecutors who have dared to hand down sentences against persons who sow terror and believe themselves to be the masters of the country.

In recent years all the leaders of the organizations affiliated to PSI have reported threats, harassment, dismissals, the arbitrary cancellation of collective agreements, media campaigns against them and – when all that failed to work – fabricated criminal proceedings intended to dismantle their organizations and intimidate workers who fight for their rights and report corruption.

The various governments have never complied, and have never intended to comply, with the road map given to them by the ILO in order to disband the Commission of Inquiry. Although at the time we celebrated the Organization’s boldness in seeking alternative mechanisms to facilitate compliance with ILO Conventions, today we regret the wasted time and, above all, having trusted social partners who played us for fools.

In our view, that road map is dead. Let us give it a proper burial at this session, trusting that at the upcoming meetings of the Governing Body, the Commission of Inquiry may be reactivated in order to investigate the serious violations of freedom of association and human rights occurring in Guatemala.

Government representatives, we cannot be mere observers when it comes to the most precious legal asset there is – life – and we must ensure freedom of association and, obviously, the decent work that is guaranteed and supported by the ILO.

Government representative – Taking the floor again, I wish to say that I have listened with attention and interest to the statements made by the representatives of the Governments, Employers and Workers. I am grateful for the comments which recognize the progress made by the Government. I wish to emphasize that we understand your concerns, we deeply regret the deaths of the trade union leaders and members, and we agree on the importance of ensuring respect for trade union rights in law and in practice.

Hence we have provided and maintained a proactive tripartite social dialogue. As a member who shares responsibility for implementation of the road map and taking account of the comments of the Committee of Experts relating to the Convention, we have been firm and constant in intensifying our efforts to act with determination in the actions that enable progress to be made regarding observance of the Convention, in particular concerning trade union rights and civil liberties, legislative issues and the application of the Convention in practice.

Aware of the fact that we are still facing challenges to conclude the actions that are still pending relating to the road map for the Convention, we trust that these will be accomplished, and to that end it will be essential to continue building on the basis of dialogue. We also trust that the state institutions, in accordance with the legislation, will continue with actions that enable the ongoing achievement of the tangible results required, within the time frames indicated by the joint mission and set out in document GB.346/INS/10 concerning identified priority actions for the time ahead, always subject to the provisions of law.

Achieving these is made possible by support from the social partners and from the ILO, to which we reiterate the request for technical assistance under the technical cooperation programme entitled “Strengthening the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards”. This would enable a successful conclusion to the requests adopted by the Governing Body in November 2022.

May I remind my fellow constituents that we are respecting the points defined by the joint mission during its visit to our country in September 2022, and also its time frame for the whole of the current year, as long as technical assistance is forthcoming.

The Government has focused its technical and financial efforts on areas related to: (1) entering trade unions in the public registry of trade unions, which is done in strict accordance with the law and as indicated by the Committee of Experts in its observations. An ongoing dialogue has been maintained with the sectors in the context of the Subcommittee on the Implementation of the Road Map, which forms part of the National Tripartite Committee. It should be noted that the Ministry of Labour has maintained confidentiality with regard to persons who are union members, in order to prevent the risk of inclusion of the unions in any list indicating their union activity; and (2) strengthening the Public Prosecutor’s Office with training on Instruction No. 1-2015 throughout Guatemala in order to raise prosecutors’ awareness of its objectives, and also processing complaints received in the provinces in order to launch initial investigations and respond to the situation on the ground with the criminal prosecution process, based on the presence of branches of the Public Prosecutor’s Office throughout the country.

We recognize and reaffirm that there is a need to focus tripartite efforts on a national approach with a strategic path in the medium and long term, going beyond the short term, as has been discussed in the ILO supervisory bodies, to enable sustainable results to be achieved in line with the situation in the country, bearing in mind that the processes of generating confidence and the results thereof may take more time than we would like. However, we reiterate our commitment to continuing our efforts to face the challenges ahead of us, placing the focus on the tripartite approach, respecting the role of each constituent, and reiterating that the Government will continue to intensify its efforts until its commitments have been fulfilled.

Guatemala is making efforts to maintain constructive relations with the social partners and to keep the joint mission informed through meetings and written information on the progress and implementation of our immediate and ongoing actions. This is to ensure compliance and to give evidence of our dedication and commitment with regard to the Convention, on which the constant progress has been indicated to the National Tripartite Committee, pointing out that although we are moving forward at the speed dictated by the legislation and the national situation, we are moving and we are on the right track.

Whether or not there is agreement with the progress demonstrated and even though there are value judgements from each sector on the progress shown, we must consider the importance of recognition of the constructive role played by the National Tripartite Committee, which in itself is an achievement, with the support of the International Organisation of Employers, the International Trade Union Confederation and the ILO, in all these processes.

We underline the need to continue building confidence to consolidate genuine social dialogue in our country accompanied by constant demonstrations of political will, taking account of the observations of the Committee of Experts on the Convention, as well as evaluation of the road map through the key indicators and the points referred to by the joint mission adopted by the Governing Body at its 346th Session (November 2022). Information was given to the ILO Governing Body and this will continue under the technical cooperation and assistance programme, a measure adopted at the 340th Session of the Governing Body (November 2020).

I reiterate emphatically that Guatemala is respectful of labour rights, and underline that the utmost efforts are being made to meet the stated international obligations. Guatemala focuses on ensuring that challenging, innovative proposals and consensus are achieved to offer solutions to the needs and concerns of the Guatemalan people in the world of work.

Beyond any shadow of doubt, we must recognize the importance of continuing with social dialogue and show humility in asking for help where necessary, as we have been doing. In this regard, we reiterate our firm hope that those countries that see fit can join us and make a financial contribution to the technical cooperation and assistance programme adopted since November 2020, and that thanks to the EU funds, granted as from September 2022, the existing and ongoing efforts made by the Government will be assisted.

In this context, may I once again reiterate the request for technical assistance made by the Government after 7 March 2023, in relation to the points indicated in the legislative reforms which have been referred to so much here, and specifically with regard to strengthening the National Tripartite Committee, on which we are still awaiting a favourable response.

All that remains for me to do is to encourage my fellow constituents to resolve the issues concerning labour relations and freedom of association, to continue developing high-level dialogue forums in this context, and to encouraging the countries making interventions in this esteemed forum to support us by continuing to engage in constructive dialogue combined with the results that we continue to demonstrate to the ILO Governing Body in the context of the technical cooperation programme in relation to which the actions indicated by the joint mission are carried out.

Before concluding, with the aim of focusing and centring the discussion, Guatemala requests that the Committee’s conclusions make an exclusive reference to the matters relating to Convention No. 87 with respect to our country and that they do not refer to different matters mentioned in this session by the Worker members.

Lastly, reiterating that Guatemala has demonstrated and will continue to demonstrate achievements with dedication, responsibility and effort to ensure fulfilment of the commitments made vis-à-vis the ILO, focusing our efforts, willpower and dedication to continue a mature dialogue, honouring the memory, dedication and laudable work of Carlos Mancilla, who was a driving force behind the road map, a chairperson of the National Tripartite Committee, and a firm believer in dialogue and tripartism.

Employer members – It is undeniable that we are dealing with a process of improvement which has been demonstrated throughout the various interventions and the reports provided by the Government. We are very grateful for the Government’s detailed description of the actions which it has taken, in particular its interest in continuing with this technical assistance, following the road map and maintaining effective tripartite dialogue. This is the true way towards improving any situation and condition that arises – continuing to act constructively, strengthening dialogue, and making use of the technical cooperation and assistance referred to, not to put forward punitive proposals which, frankly, will not achieve anything. There have been one or two proposals to take more drastic measures – a commission of inquiry –, but the question is: for what purpose? We are, precisely, in the middle of a proposed solution to the issues which have arisen. The task of a commission of inquiry, as we all know, is to investigate the facts and propose solutions, which is what has been proposed: we are in the process, we are on the way.

I would ask you to consider this proposal which is seems the Government has put forward to continue constructively on the path we are on. Of course it is a source of concern that there are still situations involving threats and widespread violence. Rapid and effective action is needed to eliminate this and strengthen investigations and the resolution of issues which are pending, in order to generate protection for trade union leaders and members. On no account can we accept conditions that generate the kind of circumstances which have been described and reported by the Government itself – but I insist that we are on the way. Legislative changes need to be speeded up. We understand that this is a process which takes time, in all countries of the world. If only the Government could impinge on the autonomy of the legislature and get it to give priority to this subject! We also think that greater visibility should be given to the proposed awareness-raising campaign on freedom of association to which the Government has committed. It should be ensured that there is no stigmatization of any of the components of the collective bargaining equation, namely the unions, their leaders and the employers. This condition must be clear. Fresh efforts will be required. I would like to insist on one point: in its statement the EU, in referring to the observance of the Convention, once again raised the issue of the right to strike. We the employers would like to reiterate our position: that the Convention does not refer to the right to strike, we do not accept these matters being raised in the discussions or in the conclusions when we are speaking about the Convention because each country adopts its own regulatory provisions in this regard.

That is all from us. We hope that the conclusions will be constructive and will enable us to continue making progress in this process of improvement which, it is clear, is not as rapid or prompt as we would hope, but it is clear that we are moving ahead and are in a better position than we were yesterday.

Worker members – The reaction of the Government to the interventions in this room speaks for itself. The steps taken by the Government are far too little and too late. As a result, workers in Guatemala continue to be denied, in law and in practice, their right to freedom of association. No one can deny that Guatemala remains among the most dangerous countries in which to be a trade unionist, with many having paid with their lives merely for carrying out lawful union activity. Arrests and prosecutions for these murders remain a rarity. Anti-union dismissals continue with impunity and the labour justice system has been incapable of providing a remedy. And the labour law in many respects restricts the right of workers and unions to carry out their activities, including to bargain collectively or to strike.

Repeated governments have made promises and received a lot of support and technical assistance to fix these problems but without results. It has now been 11 years since the submission of an article 26 complaint concerning systemic violations of Conventions Nos 87 and 98 by Guatemala at the 2012 International Labour Conference and nearly 10 years since the adoption of the Memorandum of Understanding and the road map, which were adopted by the Governing Body in October 2013. Sadly, as the Committee of Experts’ report indicates, little has changed. The Government has failed to implement the road map, leaving the great majority of issues unaddressed. The subset of priority issues identified last September remains incomplete. There is no evidence of systemic and sustainable reforms in law or labour administration. We have heard from the Government that it is going to archive some 46 cases because those cases are old. This is deeply concerning. We urge the Government to continue to investigate these cases so as to ensure justice for the victims and for their families.

The Worker members call on the Government with, of course, the support and commitment of the workers’ and employers’ representatives at all levels: to fully implement the road map adopted on 17 October 2013, in consultation with the social partners, without any further delay; to investigate without delay all acts and threats of violence against trade union leaders and members, including Hugo Eduardo Gamero González, with a view to identifying and understanding the root causes of violence, taking into account their trade union activities as a motive, determining responsibilities, and punishing the perpetrators, including the instigators and perpetrators; to provide rapid and effective protection to all trade union leaders and members who are under threat by increasing the budget for such programmes and to ensure that protected individuals do not personally have to bear any costs arising from those schemes; to adopt the agreed amendments to eliminate the various legislative obstacles to the full exercise of freedom of association; to develop legislation to allow for the formation of trade unions at the sectoral level; to approve draft law 5508 to provide a legal foundation to the National Tripartite Committee on freedom of association; and, in consultation with the social partners, to ensure the efficient registration of trade unions, including the implementation of the electronic tool designed by the ILO; to ensure that judicial decisions of reinstatement in employment following anti-union dismissals are enforced without delay, including implementing any recommendations from the comprehensive technical diagnosis of the challenges in terms of reinstatement prepared by the ILO; to increase the visibility of the awareness-raising campaign on freedom of association in the media and ensure that there is no stigmatization of trade unions or their leaders or of collective agreements.

We call on the Government to accept a high-level tripartite mission. Given the seriousness and persistence of the violations and continued imminent danger to life faced by trade unionists and the failure of the Government to take any concrete and meaningful measures to urgently address the situation, the Worker members request a special paragraph for this case.

Conclusions of the Committee

The Committee took note of the oral and written information provided by the Government and the discussion that followed.

The Committee noted with deep concern the persistence of allegations of murders of trade unionists and other acts of anti-union violence as well as the general situation of impunity that prevails in the country.

Taking into account the discussion, the Committee urges the Government, in consultation with the social partners, to:

- take immediate measures to address the general situation of violence and intimidation, put an end to acts of violence and threat thereof against trade union leaders and members;

- fully implement the road map adopted on 17 October 2013 without further delay as well as any recommendations prepared by the ILO;

- investigate without delay all acts and threats of violence against trade union leaders and members to determine responsibilities, punish the perpetrators and identify the root causes of violence;

- provide rapid and effective protection to all trade union leaders and members who are under threat by increasing the budget for such programmes and ensure that protected individuals do not personally have to bear any costs arising from those schemes;

- take measures to adopt without delay the agreed amendments to eliminate legislative obstacles to the full exercise of freedom of association and develop legislation to allow for the formation of trade unions at the sectoral level; ensure the efficient registration of trade unions, including the implementation of the electronic tool designed by the ILO; and

- increase the visibility of the awareness-raising campaign on freedom of association in the media and ensure that there is no stigmatization of trade unions, their leaders and collective agreements.

Government representative (Minister of Labour and Social Welfare) – Guatemala carefully notes the Committee’s conclusions and the importance of continuing to work in a coordinated manner, adopting effective measures for the full application of the principles of freedom of association and the right to organize, with the firm hope that we will continue building through social dialogue with the constituents of the National Tripartite Committee on Labour Relations and Freedom of Association.

I would like to point out that it is the Public Prosecutor’s Office which has the obligation to prosecute crimes against life with respect to all Guatemalan citizens, without any discrimination whatsoever. Accordingly, it will continue to support and participate in the National Tripartite Committee and work with the trade unions, in order to achieve an objective resolution of the acts and threats of violence against trade union leaders and members, as it has been doing with its open-door approach.

As previously stated, I recognize that perhaps we are not moving as quickly as everyone would like but the undeniable reality is that we are moving and we are on the right path. We therefore trust that at some point in the future the progress made by the Government of Guatemala and the fact that we have been constant in demonstrating our commitment to the application of Convention No. 87 will be recognized. Beyond any doubt, we will continue building trust and intensifying the efforts needed to achieve the full application of the Convention, relying here on ILO support in the form of technical assistance and cooperation.

Individual Case (CAS) - Discussion: 2022, Publication: 110th ILC session (2022)

Written information provided by the Government on 16 May 2022

The Government has provided the following written information, as well as the government report submitted to the National Tripartite Committee on Labour Relations and Freedom of Association containing data on key indicators updated to 2022 and the letter of 16 May 2022 sent by the Minister to the employers’ and workers’ representatives on the National Tripartite Committee.

Trade union rights and civil liberties

The Government of Guatemala indicates that, in light of the importance of the initiatives undertaken by the Subcommittee on the Implementation of the Road Map, and the allegations made by workers’ representatives relating to the investigation of acts of violence against trade union officials and members, with a view to clarifying responsibilities and punishing both the perpetrators and instigators of the acts; taking fully into consideration the investigations of the trade union activities of the victims; and the provision of rapid and effective protection to all trade union officials and members who are at risk in order to prevent any further acts of anti-union violence; the Government is making great efforts and taking firm measures to enable the trade union movement to develop in a climate free from violence, threats and pressure and so that trade union rights can be exercised in full normality. Among these efforts, the Government recalls that the Office of the Public Prosecutor has succeeded in obtaining convictions since 2007, which has demonstrated a significant increase in the number of cases of murders of trade union officials and members that have been denounced to the ILO being clarified and resulting in convictions, as indicated in key indicator 1 of the road map, as shown in the reports sent to the Committee of Experts on the Application of Conventions and Recommendations (CEACR). Despite the context of the pandemic, with reference to the number of convictions obtained in relation to the deaths of trade union officials and members, the Office of the Public Prosecutor indicates that of the three cases which are at the stage of oral and public hearings in 2022, the Criminal, Drug Trafficking and Environmental Crimes Sentencing Court of Retalhuleu indicated in May 2022 the commencement of the oral and public hearings for one of the cases, and that it is accordingly envisaged that convictions will continue to be obtained in 2022.

The Office of the Public Prosecutor adds that the Unit of the Office of the Special Prosecutor for Crimes against Judicial Officials and Trade Unionists (FDCOJYS) is continuing to make exhaustive efforts to carry out investigations in accordance with the rule of law, in which it urges workers’ representatives to collaborate in cases where the collaboration of trade union officials and members assists in ensuring effective and rapid investigation. The Office of the Public Prosecutor therefore, in accordance with the comments of the CEACR and the recommendations of the Committee on Freedom of Association in Case No. 2609 (communicated by the Government on 30 September, 22 and 25 October and 6 December 2021, 7 and 17 January and 15 February 2022), with regard to: (i) the continued role of the Trade Union Technical Committee of the Office of the Public Prosecutor, indicates that high-level meetings were held on 28 October and 29 November 2021 and 27 January 2022, during which information was provided and interactive dialogue took place with the full participation of trade union representatives, although it was not possible to hold the meeting on 28 April 2022 due to the excuses made by the workers’ representatives; (ii) contacting and meeting the complainant organizations to facilitate the identification of all cases of anti-union violence that they reported in their latest communication, indicates that the Office of the Public Prosecutor has organized for workers’ representatives since 29 November 2021 weekly meetings with the assignation of the Prosecutor-General of the FDCOJYS on Fridays to deal with related cases, although workers’ representatives have not yet attended the meetings; (iii) institutional strengthening, reports a significant increase, as a result of the allocation of the necessary human and financial resources, in the criminal investigation capacities of this prosecution unit in 2022, according to the information provided in the Government Integrated Accountancy System for the Office of the Public Prosecutor, it has a budget of US$605,885.31 (4,645,359 Guatemalan quetzals) which covers the wages of the personnel (91 per cent) and operational inputs (9 per cent); of that, the Office of the Special Prosecutor has benefited from an increase of US$1,697.19 (13,006 quetzals) in its budgetary allocation for operational inputs; in 2021, it was allocated US$52,560.93 (406,994 quetzals) and in 2022 US$54,806.96 (420,000 quetzals); (iv) the investigation of the 35 cases of murder (one repeated) reported by the National Tripartite Committee, it reiterates that in addition it has taken the necessary measures to deal with and provide resources for them, and that seven convictions have been obtained in those cases; and (v) all the cases that continue to be under investigation, in accordance with Instruction No. 1-2015 of the Office of the Special Prosecutor on the security of trade unionists, as a result of which the telephone number assigned to the FDCOJYS to report crimes continues to be operational and is functioning. In addition, the Prosecutor-General has made available to trade union officials and members a telephone number specifically to report crimes committed against trade union officials and members at the highest level to the Secretariat for International Relations, for personalized action; in that regard, reference should be made to two cases reported by workers’ representatives in 2022.

With regard to the intensification of the necessary security measures, especially of a personal nature, the Ministry of the Interior provides the logistics and planning to cover and deal with the security requirements indicated by the Office of the Public Prosecutor; in this regard, security measures have continued to be provided, and between 2021 and 15 April 2022 a total of 109 denunciations were received and 119 protection measures provided, including to the President of the National Tripartite Committee and the workers’ representative, Carlos Mancilla, for whom, among others, personal security measures have been provided. Moreover, the President of the Republic of Guatemala has given precise instructions for the launching of the analysis unit on attacks against trade union officials and members with a view to reinforcing the joint declaration made by the Office of the Public Prosecutor and the Ministries of Labour and the Interior.

Legislative aspects

With regard to the tripartite efforts made since 2018 (the letter of 7 March and the tripartite agreement in August), and the draft legislative initiative discussed by the three partners in March and April 2021, the Government of Guatemala has expressed its goodwill for it to be submitted once again to the Congress of the Republic, adapted as a draft legislative initiative based on tripartite consensus, so that the corresponding legislative reform can be made in accordance with its constitutional mandate. The draft is the result of social and tripartite dialogue on the following aspects: (i) the workers’ representatives added an introductory paragraph referring to the harmonization of the national legislation with the principles of freedom of association; (ii) the Government proposed that section 12 of Decree No. 7-2017 of the Congress should not be amended, as set out in the proposal forwarded on 7 March 2018, although that has been superseded by the case law of the Constitutional Court and the Inter-American Court of Human Rights, and a technical legislative error, as in the present case, does not prevent compliance with the basic right, among others; and (iii) the employers’ representatives, in light of the dialogue, would make another revision, and the appropriate comments will be made. In accordance with the principles of social dialogue and tripartism, the Government has requested the partners to make their comments and/or indicate their agreement with the draft legislative initiative, which have not been received and as a consequence it has not been submitted to the Congress of the Republic as a tripartite proposal. It should also be noted that the Government of Guatemala forwarded the contributions of the partners in communications dated 22 April, 19 September and 31 October 2021, and 24 January 2022, and on 10 January 2022 it called for them to be addressed by the National Tripartite Committee (the recognized and preferred dialogue forum) so that a tripartite consensus proposal can be forwarded to the Congress, and not only by the Government as the State concerned and with the ultimate responsibility for the adoption of legislative reforms taking into consideration the lessons learned and the practical improvements in the submission of draft legislation that has full consensus and that is covered by tripartite agreement. In this regard, the Government trusts that, as a result of social dialogue, tripartism and ILO technical assistance, it will finally be able to submit a legislative proposal that takes into account the national situation and the observations of the CEACR, and which is submitted on a tripartite basis for approval by Congress without further procedures.

Application of the Convention in practice

The Government of Guatemala, having noted the recommendations of the CEACR concerning support within the framework of the technical cooperation programme of the Office and in light of the decision adopted by the Governing Body at its 334th Session, through which the Ministry of Labour and Social Welfare requested the support of the Office to redesign the procedures that had been criticized and develop an electronic tool to facilitate internal access to information on trade union registration, generate reports and manage files. In this regard, it reports that the Ministry of Labour and Social Welfare has registered 17 new trade union organizations between September 2021 and May 2022. Moreover, with regard to dealing with disputes, under the responsibility of the Subcommittee on Mediation and Dispute Resolution, of which the Government is a member, efforts have been made by the General Labour Inspectorate to establish 64 dialogue round tables in 2021 and 2022 (up to April). In relation to the resolution of disputes, reference may be made to 15 cases in which results have been achieved, including the municipality of Mixco which, notwithstanding the conclusion of the judicial procedure, addressed the issue through the General Labour Inspectorate through a round table and, following 18 dialogue meetings, reinstated nine people, according to the report of 14 December 2021, all in accordance with the call by unions to the General Labour Inspectorate to develop and democratize trade union rights and practices through social and tripartite dialogue.

The Government of Guatemala wishes to indicate that, in relation to the significant increase in the percentage of court orders that have been implemented in practice for the reinstatement of workers subject to anti-union dismissals, in relation to point 7 of the road map on Convention No. 87, the judiciary, in Instruction No. 052-2022/DGL/Orza of 30 March 2022 and its related documents, on the basis of the reports of reinstatements implemented at the national level between September 2021 and March 2022, indicates that there have been 255 cases of reinstatement in practice.

The Government of Guatemala reiterates its commitment to the implementation of the road map as indicated over the past three years, its constant understanding that the most important lesson to be drawn from this process is the need to consolidate real social dialogue in Guatemala and emphasizes that this has been accompanied by constant demonstrations of the political will to give effect to the road map and the results achieved for each of its key indicators. The Government’s efforts supported by the ILO technical cooperation programme, as noted by the Governing Body at its 340th Session, and their implementation, have achieved the following results: (1) the functioning of the National Tripartite Committee, with its three subcommittees, as the leading body for social dialogue on labour policy and respect for labour rights, with particular reference to freedom of association and collective bargaining; (2) improvements in the protection mechanisms and enforcement of labour rights, with the support offered by the European Union through which, although it has not yet materialized, it is hoped that the efforts made will be maximized and achieve their potential; (3) the harmonization of the legislation with international labour standards, and particularly ILO Conventions Nos 87 and 98; and (4) the effective promotion of collective bargaining with a view to optimizing and reinforcing a tripartite approach to the harmonization of the legislation with international labour standards.

In light of the above, the Government of Guatemala is maintaining and will continue its firm efforts to create trusted institutions which guarantee trade union practices, freedoms and rights at the national level through social dialogue and tripartite consultation.

Written information provided by the Government on 2 June 2022

1. Background

The Government of Guatemala indicates that, in relation to compliance with the road map under the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the measurement of its key indicators, in accordance with the Tripartite Agreement concluded in November 2017 in Geneva, Switzerland; and by virtue of the documents setting out the procedures of the Committee on the Application of Standards at the 110th Session of the International Labour Conference of the International Labour Organization in Geneva, 2022, CAN/D.1, a document is provided containing information in relation to the above Convention.

The ILO Governing Body is following up the implementation of the road map and, in accordance with its decision at its 340th Session (November 2020), adopted the Technical Assistance and Cooperation Programme and requested the Office to submit an annual report on its implementation at its October–November sessions during the three years of the implementation of the Programme (GB.340/INS/PV, paragraph 114). The first report was submitted to the Governing Body at its 343rd Session in November 2021. The Government therefore considers that it has provided information and will continue providing information within the framework of the Governing Body in full and strict compliance with the decisions of the Governing Body. The Government of Guatemala adds that the institutional efforts for the implementation of the road map can be maximized through the Technical Assistance and Cooperation Programme, and that the efforts that have been made by the State of Guatemala will be maximized and reinforced through the institutions that focus their action on full compliance with the rights of freedom of association and the protection of the right to organize in full compliance with their mandates.

2. Road map

As indicated, there are 11 points measured by 9 key indicators, as follows:

(a) Trade union rights and public freedoms

Key indicator 1: Significant increase in the number of cases of murders of union officials and members reported to the ILO that have been investigated and have led to convictions – in relation to points 1 and 2 of the road map.

The Office of the Public Prosecutor, in documents SAIC/G 2021-000957/behedq and SAIC/G 2021-000990/behedq, dated 7 September and 10 September 2021, provided the following information, which details the effect given to this key indicator: [Table not reproduced]

Based on the above, the Ministry of Labour and Social Welfare provides the following statistical figure.

Figure 1. Sentences: Security and correctional measures, acquittals and convictions – Office of the Special Prosecutor for Crimes against Judicial Officials and Trade Unionists of the Office of the Public Prosecutor (2007–21) [Graph not reproduced]

Between 2007 and September 2021, the trend can be observed of the institutions in the justice system, within their fields of competence, working to undertake more robust investigations of cases and ensure the objectivity of judicial procedures, resulting in judicial decisions being handed down based on due process in the form of convictions and acquittals, which shows that the State is ensuring the application of the law in cases related to the deaths of trade union officials and members, in accordance with the present indicator. The following figure shows the situation each year of the cases reported to the ILO.

Figure 2. Historical overview of the deaths of trade union officials and members – Office of the Special Prosecutor for Crimes against Judicial Officials and Trade Unionists of the Office of the Public Prosecutor (2004–21) [Table not reproduced]

The State of Guatemala informed the Subcommittee on the Implementation of the Road Map at meeting 03-2021 on 18 May 2021 and in document 304-2021, with further information being provided to the Subcommittee in ordinary meeting 04-2021 and in document MISU-ws 325-2021, dated 23 September 2021, as indicated in the above table, of the sentences handed down in cases involving the deaths of union officials and members, of which 16 were for perpetrators, 5 for instigators and 3 for perpetrators and instigators.

Key indicator 2: Conduct, together with the relevant trade union organizations, of risk assessments for all threatened union officials and members and the adoption of appropriate protection measures – in relation to point 3 of the road map.

The Ministry of the Interior, in document No. DM-2300-2021/GRRM/jmt-ss, of 8 September 2021, followed by document No. DM-1141-2022 of 22 April 2022, provided the following information: from 2021 until 15 April 2022, a total of 109 denunciations were received and 119 protection measures granted, including for the President of the National Tripartite Committee, Carlos Mancilla García, for whom personal security measures were granted. In relation to inter-institutional coordination, the Office of the Public Prosecutor indicated in document FDCOJS/G 2022-000151/wzvrdc, dated 26 May 2022, that the Office of the Special Prosecutor for Crimes against Judicial Officials and Trade Unionists has launched at least 11 further investigations in addition to the 9 reported at the beginning of May 2022 to investigate and shed light on cases of intimidation denounced by the President of the National Tripartite Committee, with a view to determining the identity of those responsible for the acts reported and their motive.

(b) Legislative aspects

Key indicator 4: Drafting and tabling before Congress of a bill, based on the comments of the CEACR, ensuring the conformity of national legislation with Convention No. 87, and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) – in relation to point 5 of the road map.

With regard to the tripartite efforts made since 2018 (the letter of 7 March and the Tripartite Agreement in August), and the draft legislative initiative discussed by the three partners in March and April 2021, the Government of Guatemala has expressed its goodwill for it to be submitted once again to the Congress of the Republic, adapted as a draft legislative initiative based on tripartite consensus, so that the corresponding legislative reform can be made in accordance with its constitutional mandate. The draft is the result of social and tripartite dialogue on the following aspects: (i) the workers’ representatives added an introductory paragraph referring to the harmonization of the national legislation with the principles of freedom of association; (ii) the Government proposed that section 12 of Decree No. 7-2017 of the Congress should not be amended, as set out in the proposal forwarded on 7 March 2018, although that has been superseded by the case law of the Constitutional Court and the Inter-American Court of Human Rights, that a technical legislative error, as in the present case, does not prevent compliance with the basic right, among others; and (iii) the employers’ representatives, in light of the dialogue, would make another revision, and the appropriate comments will be made.

(c) Application of the Convention in practice

Key indicator 5: Significant increase in the percentage of reinstatement orders actually implemented for workers, victims of anti-union dismissals – in relation with point 7 of the road map.

The Labour Management Department of the Judicial System, in communication 292-2021/DGL/Orza, of 14 September 2021, and its updates up to 2022, provided the following information.

With reference to reinstatements and their location, the Labour Management Department of the Judicial System, in document No. 052-2022/DGL/Orza, dated 30 March 2022, and its updates, and in the recent document No. 066-2022/DGL/Orza, dated 30 May 2022, indicates that in 2021, in accordance with the final data provided by the Judicial Information, Development and Statistics Centre (CIDEJ), in document 331-2022/CIDEJ of 30 May 2022, 727 persons were reinstated, of whom 75.93 per cent were in the Department of Guatemala, and 24.07 per cent in 13 departments of the Republic of Guatemala. In 2022, the Labour Management Department reports 188 actual reinstatements.

Key indicator 6: Review and resolution of conflicts by the Committee for the Settlement of Disputes before the ILO in the Area of Freedom of Association and Collective Bargaining – in relation to point 8 of the road map.

With regard to this key indicator, the Government of Guatemala reiterates that the action is the responsibility of the Subcommittee on Mediation and Dispute Resolution. The Government, as a concerned party, further indicates that it has focused its efforts on the establishment of at least 67 round tables in 2021 and 2022 (up to the end of May 2022). In relation to dispute resolution, it may be noted that positive results have been achieved in 15 cases, including in the Municipality of Mixco, where a dialogue round table has been established through the General Labour Inspectorate, which has held 18 meetings with satisfactory results, including the reinstatement of 9 workers (according to the report of 14 December 2021 of the General Labour inspectorate). Among the successful cases, the Government wishes to refer to the dialogue round tables in the municipalities of Aguacatán y Cuilco, Huehuetenango; Morales, Izabal; San Cristóbal Totonicapán, Totonicapán; Retalhuleu and San Felipe y Champerico, Retalhuleu; and San Pedro y Malacatán, San Marcos.

Key indicator 8: Unimpeded registration of trade union organizations in the Trade Union Register of the Ministry of Labour and Social Welfare.

The General Directorate of Labour (DGT) indicated in document No. 374-2021 MRGE/LASC, dated 16 September 2021, document No. 102-2022 DGT-LASC/Napl of 29 March 2022, and document No. 167-2022 DGT-DISH/Napl, dated 1 June 2022, that by the end of 2021, 57 trade union organizations had been registered in the Public Trade Union Register of the Ministry of Labour and Social Welfare of Guatemala. Moreover, in documents Nos 148-2022 DGT-DISH/Napl of 12 May 2022 and 164-2022 DGT-DISH/Napl of 30 May 2022, the DGT indicated that during the course of 2022 (up to 30 May), 12 trade union organizations had been registered in the Public Trade Union Register.

Key indicator 9: Trends in the number of applications for registration of collective agreements on working conditions, with an indication of the industry concerned.

The General Secretariat of the Ministry of Labour and Social Welfare, in document No. 388-2022 SG/MNAL/arp, dated 12 May 2022 and its attachments, indicates that in 2021 and 2022 (up to 1 June as the date for the provision of information for the supplementary report to the Committee on the Application of Standards), indicates that 18 agreements have been approved. The Government of Guatemala also requested technical assistance and support from the ILO on collective bargaining in relation to the observations and direct requests made by the CEACR in a workshop on collective bargaining and social dialogue, focused on public employees in the government sector, held on 23 and 24 May 2022, with the support of the consultant Alexander Godínez Vargas, and the participation of representatives of the following related institutions: the National Association of Municipal Authorities, the Comptroller-General of Accounts, the Office of the Public Prosecutor, the Ministry of Public Finance, the National Office of the Civil Service, the judicial system through the Labour Management Department and the Ministry of Labour and Social Welfare.

Discussion by the Committee

Government representative, Minister of Labour and Social Welfare – I am grateful for the forum provided for Guatemala to address you in this esteemed plenary, to provide information on the attention that the State of Guatemala has been giving to the observations referred to by the Committee of Experts, as stated before the Committee on Freedom of Association and the Governing Body, pursuant to the decisions made by this important body at its 334th, 337th, 340th and 343rd Sessions, held in 2018, 2019, 2020 and 2021, respectively. I therefore take the liberty of emphasizing that Guatemala has provided information, and will continue to do so, on the progress made on the different points of the road map.

With regard to the additional measures adopted by the Government in the context of implementing the road map, I am accompanied today in person by the judges of the Supreme Court of Justice and in virtual format by the Public Prosecutor’s Office. We have joint responsibility for the implementation of actions that enable compliance with the road map; we have jointly assembled and submitted in a timely manner to this esteemed Committee the additional information referred to in document D.1.

I must emphasize that the Public Prosecutor’s Office, responding to the recommendation of the Committee on Freedom of Association in its 387th Report in November 2018, has constantly increased its budget and, according to its communication of 10 May 2022, the Office of the Special Prosecutor for Crimes against Judicial Officials and Trade Unionists has a budget of US$1,288,252 for 2022. We can thus see the high level of importance and commitment of the State with regard to the urgent actions being undertaken by the national investigating authority to carry out investigations which are immediate, independent, exhaustive, efficient and impartial in order to obtain justice in cases relating to our trade union leaders and members, showing that since its creation in 2011 to date, with over ten years of operation, not only has the category of sectoral prosecutor’s office been enhanced but its budget is 12 times greater than it was at the outset.

The Public Prosecutor’s Office has duly worked on all the cases that have been brought before it. It points out that one case is already at the public oral hearing stage, and in another case relating to events in Coatepeque (Quetzaltenango) a timely and relevant prosecution request is being brought before the court. It is hoped that it will be possible for these cases to be judged promptly in a public oral hearing, together with two other cases with a prosecution position. We thus expect to obtain four more rulings in addition to the 28 on which Guatemala has been providing information and thus continue to show, as established by key indicator 1 of the road map, the significant increase in the number of cases of killings of trade union officers and members reported to this Organization which have already been elucidated and have resulted in a ruling or a conviction.

Hence the Government of Guatemala shows and reiterates its full availability, with the assigned human resources, a strengthened budget and useful, timely and appropriate coordination actions, to be able to continue providing evidence of implementation of points 1, 2, 3 and 4 of the road map regarding the life and physical integrity of the trade union leaders and members for whom the State of Guatemala is responsible, and that it will continue to maximize the efforts needed to demonstrate emphatically its compliance.

Furthermore, I must point out that the Ministry of the Interior, by instruction of the President of the Republic, Mr Alejandro Giammattei, signed Ministerial Order No. 288-2022 of 3 June 2022, last Friday, and this was published today in the Official Gazette. This relaunches the operation of the authority responsible for analysing attacks on trade union officers and members, with the analysis focusing this time on our trade union officers and members.

With regard to legislative aspects, I must reiterate that in order to give impetus to the proposed Bill whose content encompasses tripartite agreements which have already been reached, taking account of the national situation, with a view to reflecting trends in legal studies and jurisprudence, we have worked on a tripartite basis in two plenary meetings of the National Tripartite Committee, together with its Subcommittee on Legislation and Labour Policy, held in March and April 2021. I take the liberty of pointing out that, as the State concerned, we understand perfectly that we have ultimate responsibility for seeking the legislative reforms taking into consideration the lessons learned and the best practices in submitting proposals to the National Congress. However, we are awaiting the reactions of the constituents to the latest observations of the Government to give continuity to the discussion and the search for consensus regarding the final draft, which we have no doubt can be achieved in 2022. In this regard, we have sought, and I will continue seeking, space in the National Tripartite Committee to ensure that addressing legislative reforms is a constant feature of tripartite dialogue in this forum. However, the legislative authority is aware of our international commitment as a State and so in due course, when this reform is ready, another hearing will be requested so that, as soon as the proposal is submitted in the form of a Bill, it will be placed on the agenda and the tripartite constituents will be received to take part in dialogue and the process will continue until the actual reform is implemented.

With regard to the application of the Convention in practice, I would like to state that we have made significant progress with regard to reinstatement rulings. The judiciary, represented today by its judges, together with the Public Prosecutor’s Office and the Ministry of Labour and Social Welfare, have strengthened the space for inter-institutional coordination to respond to the workers’ concerns in specific cases. Accordingly, in 2021 a total of 727 reinstatements were effected, with 75 per cent relating to the Department of Guatemala and the remaining 25 per cent to the other 13 departments in Guatemala. In 2022, the Labour Management Department reported 188 effective reinstatement proceedings. Furthermore, the Ministry of Labour undertook an exhaustive audit of its registers and reports the registration of 69 trade unions between 2021 and May 2022. Support was requested from the ILO, both for the redesign of key processes and the construction of an IT tool which we are awaiting. We are sure that this will streamline internal access to information on trade union registration and generate reports and the handling of files so that the whole process will be more expeditious, as is the case for the implementation of an inter-institutional workshop on collective bargaining and social dialogue, a forum in which stakeholder institutions already took part.

I am pleased to state that on 24 May 2022 the subject of the implementation of the road map and key indicators was addressed at the level of the Government Cabinet. I raised the challenges and proposals for implementation with the other Cabinet members and the President himself, fixing as a regular proposal the institutional efforts for the effective implementation of, and prompt compliance with, the road map. In this regard, it was requested that: (i) government institutions should continue complying with the reinstatement orders issued by the competent judge; (ii) personal protection measures should be adopted for members of the trade union movement in situations of risk, like those that were promptly adopted in the regrettable cases of threats to Mr Carlos Mancilla, the National Tripartite Committee President; and (iii) the request to approve the body responsible for analysing attacks on trade union officials and members which, as I mentioned previously, was accepted.

I emphasize that we recently held a constructive meeting with the Director of the International Labour Standards Department and with the national and international tripartite constituents, to whom we reiterate our satisfaction at the strengthening of the National Tripartite Committee and its subcommittees, forums which we consider to be vitally important in the development of dialogue, in which comprehensive joint solutions can be found to the labour dynamics of our country, as well as an ongoing implementation of the road map, in accordance with the Convention. In these forums we have expressed our views, we have listened to the views of others regarding the challenges to be faced, and we all share the concern of achieving full compliance with the road map and key indicators in the shortest time possible.

We have no doubt that the technical cooperation and assistance programme, requested of the Office by the Governing Body at its 334th Session, will contribute to the sustainability of the current social dialogue process and drive progress in the application of the road map. The aim is that this programme, approved by the Governing Body at its 340th Session of November 2020, can function rapidly, adding to the own efforts and funds supplied by the Office, and with those which we hope will come from the European Union this year. We are already grateful for this, which without any doubt, together with social dialogue and tripartism, will reinforce not only the legislative proposal but will also intensify institutional efforts to implement the road map, while not forgetting to emphasize that to this will be added the Guatemalan State’s own efforts through the institutions that focus their actions on the full respect for the right to freedom of association and protection of the right to organize, in full alignment with the scope of its powers.

Furthermore, we are grateful for the time and support of the international social partners, the ILO, the Office for Workers’ Activities (ACTRAV) and the Office for Employers’ Activities (ACT/EMP) for the consolidation on this path of social dialogue and the ongoing application of the Convention in practice.

In this regard, and with a view to a democratization and reinforcement of the exercise of respect for labour rights in Guatemala, it has been proposed to us, the tripartite constituents in my country, technical support deriving from the balanced application of the technical assistance and cooperation programme. It is my pleasure to say that we are once again grateful for the support offered and we consider that the exchange of experience and knowledge can promote the decision adopted by the Governing Body at its 334th Session, paragraph 401(b), firmly calling on the Government of Guatemala, the Guatemalan social partners and the other relevant public authorities, with the support of the International Organisation of Employers (IOE) and the International Trade Union Confederation (ITUC), and the technical assistance of the Office, to elaborate and adopt legislative reforms that fully comply with point 5 of the road map.

I must emphasize that, aware of the responsibility of the Government with respect to the implementation of the road map and its key indicators, its commitment remains unlimited, being strengthened by addressing the concerns of the sectors, seeking to provide an institutional response that reaches the highest levels of efficiency and focuses on giving attention to our trade union leaders and members.

In reality this is a country which, despite receiving a massive shock to its economy, maintains its unlimited commitment and determination as a State to comply fully with all national laws and the international commitments relating to individual and collective labour rights, and to continue a dialogue focused on actions that enable the creation of decent work and sustained and sustainable inclusive economic growth.

Worker members – Five years after the last examination of the case, the Committee is once again being called upon to review the application of the Convention in Guatemala, a country which holds the dismal record of having appeared before the Committee on 19 occasions with regard to the application of the Convention.

The Government of Guatemala has not acted systematically in response to the serious observations and recommendations of the ILO supervisory bodies. Exactly ten years ago, the Workers’ delegates presented a complaint under article 26 of the ILO Constitution for the establishment of a Commission of Inquiry with regard to non-observance of the Convention. Our complaint was finally closed in 2018, and a three-year technical cooperation programme was adopted, entitled “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards”. The main objective of this initiative is precisely the protection and promotion of labour rights with a special focus on action against anti-union violence and impunity.

However, and we note this with great regret, no substantial progress has been made to put an end to acts of anti-union violence, including the murders of numerous trade union officers and the situation of impunity related to it.

The Government of Guatemala states that it carried out 55 risk assessments with regard to members of the trade union movement during 2020, with 1 personal security measure and 47 perimeter security measures. In 2021, a total of 19 risk assessments for members of the trade union movement were carried out, with 15 perimeter security measures adopted. These measures are far from being satisfactory; on the contrary, violence against workers and trade union leaders has not decreased. Between 2020 and 2021, 9 union leaders and members were murdered.

In respect for their memory, the Worker members wish to mention their full names: Gerson Hedelman Ortiz Amaya, member of the Municipal Development Institute Workers’ Union; José Miguel Alay, member of the Workers’ Union of the University of San Carlos; Héctor David Xoy Ajualip, member of an enterprise-level workers’ union; Julio César Zamora Álvarez, member of a dockworkers’ union; Ludim Estuardo Ventura Castillo and Cinthia del Carmen Pineda Estrada, of the Education Workers’ Union of Guatemala (STEG); Misael López, Fidel López and Medardo Alonzo Lucero, members of the Chorti Nuevo Día Federation of Peasant Farmers’ Organizations, and Carlos Enrique Coy, member of the Verapacense Union of Peasant Farmer Organizations (UVOC).

Each of these brutal crimes remains unpunished. Countless other trade union members and their families continue to be victims of attempted murder, violent assault, death threats, intimidation and harassment.

In the meantime, there have still been no convictions for the vast majority of the numerous recorded murders of members of the trade union movement. The Government is not fulfilling expectations and commitments entered into when undertaking investigations and proceedings, failing to perform actions as basic as gathering the testimonies of family members and witnesses, or omitting aspects of ballistic analysis, in cases involving anti-union crimes. As a result of these deficiencies, at least 105 murders have still not been resolved in judicial terms.

The extreme degree of violence which pervades the whole of society, aggravated by the lack of action by the Government as regards investigating and prosecuting anti-union crimes and protecting trade unionists, cannot go on being tolerated and calls for firm and immediate action.

Freedom of association cannot be exercised if human rights, especially the right to life and personal safety, are not fully respected and safeguarded. The Government of Guatemala cannot carry on evading its responsibilities. It needs to be reminded of its commitments under international standards, including in the context of the current technical cooperation programme, and its obligations towards its population to ensure a climate free of violence, pressure or threats.

The situation in the country is made worse by the long-standing gaps in the national legislation, which de facto deny workers their basic labour rights: section 215(c) of the Labour Code, which requires a membership of “50 per cent plus one” of the workers in the sector to establish a sectoral trade union; sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity to be eligible for election as a trade union officer; section 241 of the Labour Code, under the terms of which strikes have to be called by a majority of the workers and not by a majority of those casting votes; section 4(d), (e) and (g) of Decree No. 71-86, which provides for the possibility of imposing compulsory arbitration in non-essential services and establishes other obstacles to the right to strike; sections 390(2) and 430 of the Penal Code and Decree No. 71‑86, which establish labour, civil and criminal penalties in the event of a strike by public officials or workers in certain enterprises and the exclusion of various categories of public sector workers (hired under item 029 and other items of the budget).

Despite the repeated requests of the various ILO supervisory bodies, the Government of Guatemala has not made any tangible progress to bring the legislation into line with the Convention. The Worker members urge the Government to amend the legislation in consultation with the social partners and in accordance with the Convention.

Nor has there been any progress on the long-standing issue of the registration of trade unions. According to the information provided by the Government, more than one third of requests to register a union reviewed in the last two years have been rejected and a significant number of requests are still being processed many months after they were submitted.

Nor has the Government made the slightest effort to comply with the reinstatement orders for workers who have been victims of anti-union dismissals.

Lastly, the Government has not made any progress in disseminating the awareness-raising campaign on freedom of association and collective bargaining in the country. On the contrary, the media constantly attack trade union leaders and their organizations. Since the article 26 complaint procedure was closed, the Government has not shown the slightest willingness to fulfil the commitments entered into under the 2013 road map.

The Worker members are extremely concerned at the persistence of anti-union murders and other acts of violence connected with the victims’ union activities, at the climate of widespread impunity in the country and at the total absence of progress or even evidence of the Government’s willingness to act, despite multiple and repeated calls from the various ILO supervisory bodies and the Governing Body and in spite of ILO technical assistance.

We demand that the Government take immediate, decisive and effective measures to protect the life and physical integrity of all trade union leaders and members and workers, to streamline investigations into anti-union crimes and to punish the perpetrators. We also expect the Government to bring the legislation into line with the Convention in consultation with the social partners and without further delay.

Employer members – We would like to begin by saying that we too are moved and touched by acts that involve the loss of human lives; in this case those of trade union leaders and activists.

This is a matter that we have been addressing for quite some time. The distinguished representative of the Workers already mentioned that a complaint was submitted in 2012 under article 26 of the ILO Constitution and was closed in 2018.

However, in the course of the follow-up evaluation by the Governing Body in 2013, a memorandum of understanding at the highest level was approved with the ITUC supporting that process; in 2014, it was agreed to adopt a road map; in 2015, nine key indicators were specifically included as follow-up to the road map; in 2017, a tripartite agreement was reached on four of the six legislative topics which the Workers’ representative has just mentioned; in 2018, the National Tripartite Committee was established which, inter alia, reached some additional complementary agreements, with three subcommittees discussing various aspects, including one dealing with specifically international matters.

At the closure of the complaint, it was finally agreed from 2020 to have a technical assistance programme and, in particular, the Governing Body requested a follow-up to this programme for the evaluation of the road map indicators. Indeed, these aspects resulted in the approval of the programme for three years. Lastly, reports were presented at the November 2021 meeting on the implementation of this cooperation and these technical assistance programmes.

Furthermore, since 2005, the Committee on Freedom of Association has been addressing allegations of serious and worrying acts of violence against trade union leaders and members. In Case No. 2609, which was last examined in October 2021, we are evaluating acts that occurred between 2004 and 2021, namely murders and killings of members of the trade union movement.

We are deeply moved as is only natural. However, regarding the developments on the road map, elements should be objectively noted with regard to specific actions by the various institutions in Guatemala. As regards the number of murders, some judgments have been issued recently in which we note – and it is not the information that we would ideally like since we would like to have specific details of all the cases – that there have been 22 convictions; 1 conviction with security and corrective measures; 5 acquittals; and 56 cases which are with the Public Prosecutor's Office and 59 with other branches of the prosecution service. In addition, there is another series of data, which include investigations that have been archived because of the death of suspected perpetrators of the crimes that were due to be investigated.

Certain legislative matters are also pending. Even though agreements have been adopted, as I mentioned, additional steps need to be taken in the Congress of Guatemala so that a tripartite agreement can be adopted in the form of a law in that country.

Also, as regards mechanisms for prevention and for the protection of union leaders, 119 protection measures have been adopted in the last two years. Although this is probably not sufficient, it does show concrete action in providing individual persons with protection programmes. This includes, in particular, the distinguished Workers’ representative of Guatemala, who, we are aware, is under a special protection scheme to provide him with all necessary guarantees.

With regard to labour inspection, we have recorded the fact that since 2017 regulations have been issued by the National Congress adopting new systems for the application of penalties and improving individual ways of gathering statistics and, in addition, strengthening institutions related to labour inspection.

Similarly, regarding the various road map indicators, we can see with regard to rulings handed down by labour tribunals that reinstatement has been sought for workers who have been the victims of anti-union dismissals and that there were 761 reinstatement proceedings in 2020, 727 in 2021, and 188 so far in 2022.

At the same time, there is a second awareness-raising campaign regarding freedom of association which is under way, following up on the first one. We all hope that through the Subcommittee on the Implementation of the Road Map there can be concrete implementation and follow-up to this indicator.

In addition, with regard to the unobstructed registration of trade unions, in 2021 a total of 57 organizations were registered and during 2022, 2 more organizations have been registered with legal personality.

As regards the approval of collective agreements, in 2020 a total of 13 agreements were approved, with a further 18 in 2021 and 2022.

Finally, regarding the road map indicators, we note the technical assistance programmes that are being implemented and through which there is specific action in tangible areas. I already referred to the functioning of the National Tripartite Committee. It would be good to know much more about its activities, in particular the attitudes of the different tripartite actors, the public authorities, the employers, but also the workers in relation to the smooth functioning of this organization.

Moreover, we know that the mechanisms for the protection of labour rights have been improved; there have been more activities on the part of the judicial authorities. Efforts are being made to bring the legislation into line with international standards, as a result of four of the six specific points which the Committee of Experts asked to be amended. Some of these referred to strike action; we have nothing particular to say on this subject.

Lastly, effective collective bargaining has been promoted, as borne out by the data regarding the registration of the approved agreements. In this regard, we see that there has been an evolving process which is insufficient, in which institutional operations in Guatemala need to be reinforced. In particular, we think it would be relevant to have joint action by these authorities to strengthen existing institutional activity in these dialogues, so that further progress can be made.

In conclusion, the Governing Body will undertake evaluations in the next two years with regard to these indicators precisely which makes it a competent body for following up on these subjects.

Employer member, Guatemala – We are grateful for the information provided by the Government of Guatemala, reporting on progress made regarding the implementation of the road map adopted on a tripartite basis in 2013.

First of all, I would like to speak of the topic of the greatest concern: namely, the acts of violence and the follow-up to the investigations into the cases of violent death. We start from the basis that the loss of any life is reprehensible; it cannot be tolerated for any reason whatsoever, whether or not it is related to the trade union activity of the victim.

Years ago, the figures reported showed little variation. However, for some time an interesting trend has been visible in the results that have emerged: they seem to indicate that there has been political will on the part of the State, which has been reflected in government departments dealing with these cases.

We would like to emphasize that, according to investigations into convictions and acquittals so far, in no case has an anti-union motive been established. Indeed, the motives have been seen to include personal issues, gang activity, theft, road accidents, extortion, marital problems and real estate problems, as reported to the Subcommittee on the Implementation of the Road Map. This is understandable in the context of violence unfortunately being experienced by our country, which in 2021 was ranked among the 15 most violent countries in the world according to international organization indicators. Official figures indicate over 60,000 murders in the last decade alone. We reiterate our condemnation of such facts, but it seems appropriate to us to list the motives on account of the reiterated finger-pointing in this room on this subject in previous years.

Moreover, it seems important to mention that the vast majority of these cases date back many years, which makes their judicial resolution quite complicated. Nevertheless, we note from the figures presented that there have been positive results showing that there has not been any anti-union persecution in Guatemala, as indicated to the Tripartite Commission on International Labour Affairs by the Commissioner against impunity in Guatemala after analysing the cases reported in this forum.

Furthermore, the political will to act can be seen in the fact that the mechanisms of prevention, protection and reaction against threats and assaults against trade union leaders are active and producing results.

We trust that such a course of action will help to resolve the situation faced by Mr Carlos Mancilla, President of the National Tripartite Committee, with whom we express solidarity.

Moving onto legislative matters, we work from the basis that over a number of years bipartite and tripartite agreements have been reached to amend the legislation as requested by the Committee of Experts, specifically the Penal Code, the Act on the unionization of state workers and the Labour Code. As regards the latter, even though no agreements were reached regarding some sensitive subjects for workers and employers, at least there was agreement on the direction in which such reforms should go. All of this was reported to our Committee and considered an important milestone.

We note with concern, on the one hand, that the agreed reforms have not made progress in the National Congress and, on the other, that the National Tripartite Committee has not been able to move forward in dealing with the pending reforms.

Genuine willingness is required from all those involved in the National Tripartite Committee to achieve concrete results. Some self-criticism on this last aspect would be appropriate, and I speak in a personal capacity as a member of the National Tripartite Committee. I wonder whether we have done enough to convince the legislative authority to approve the initiatives that we have submitted? Have we been proactive in the discussion of the pending reforms? Have we addressed the substantive themes of the National Tripartite Committee? Or, on the contrary, have we wasted time on irrelevant discussions, including merely formal ones relating to aide-memoires?

We trust that the outstanding topics, such as the establishment of trade unions by branch of activity and representativeness for negotiating collective agreements on conditions of work will be discussed and, hopefully, be the subject of tripartite agreement. This should be treated as a priority by the National Tripartite Committee, which should review its agenda placing this subject at the top.

A good example of such results being achievable can be seen in the legislative reforms enabling the General Labour Inspectorate to fulfil its mandate to ensure the effective application of the labour legislation, which were introduced by the National Congress by Decree No. 7 of 2017 in response to an agreement between the social partners.

Ultimately, we, the social partners, must commit to moving forward – this is how we see it. We have been doing this for many years and accordingly we are devoting our efforts to the social dialogue forums, the institutional round tables and other ad hoc initiatives with the aim of implementing the road map indicators and giving effect to the comments of the Committee of Experts.

Worker member, Guatemala – First and foremost, we would like to thank the Workers’ group for its demonstration of support and solidarity for the workers of Guatemala, with regard to ending the violence against trade union leaders and ensuring respect for the lives of the people of Guatemala, for the rule of law, for the application of prompt and due justice and the full validity of human and labour rights, freedom of association and collective bargaining. In the same way, we express our solidarity with our working comrades, men and women, in Latin America and the whole world, who, like us, are the victims of callous violence and murder, without any supreme power being there to overcome this, so that there can be peace and social justice in our countries.

The Autonomous Popular Trade Union Movement and the global unions of Guatemala, with regard to the complaint concerning non-observance by Guatemala of the Convention, submitted by delegates to the 101st Session (2012) of the International Labour Conference under article 26 of the ILO Constitution and as follow-up to the road map adopted by the Government of Guatemala in 2013, would like to make the following points.

The ongoing serious violations of freedom of association which have been occurring for years in Guatemala not only have a profound effect on labour relations but they also call into question the validity of democracy itself and human rights in the country. A ferocious anti-union campaign is being driven by employer and state sectors seeking to portray trade union organizations as being responsible for lawlessness, corruption and the economic crisis suffered by the majority of Guatemalans. Clear evidence of this is provided by the press campaign in which the leaders of the unions, including autonomous and global unions, are generally – and directly – disparaged and discredited. Certain persons connected to the employer sector are behind this.

These anti-union actions prepare the ground and result in events which seriously endanger the integrity of trade unions and their members. It is by no means a coincidence that many of our comrade union leaders and their families are receiving death threats. Regrettably, when the trade union movement calls on the competent authorities to intervene in order to preserve the safety of citizens, we are reproached with being bad citizens for merely requesting attention and protection against these attacks, which often culminate in murders committed with total impunity. The figures for violence against trade unionists in Guatemala are conclusive, with over 100 murders recorded in recent years, counting only those which have been reported to the Special Prosecutor at the Public Prosecutor’s Office.

With regard to labour rights, many workers have been dismissed for attempting to organize as a union, but reinstatement orders are not implemented by the employers in the majority of cases, and this genuine disregard incurs no consequences in terms of sanctions or enforced implementation. Multiple ministerial obstacles continue as regards the registration of new unions, as they do for the approval of collective agreements adopted by employers and workers. Lastly, and without having exhausted the list of problems, the Government of Guatemala is issuing a circular whereby collective bargaining in the public sector is practically prohibited.

The problem does not stop with the extreme seriousness of the murders, threats, surveillance and other forms of physical violence: there is an unrelenting impunity which the Government is incapable of ending.

The Public Prosecutor's Office has presented reports to the Governing Body on the status of investigations into some of the murders of trade unionists. These documents merely corroborate the technical incapacity and lack of political will to investigate the murders of our trade union comrades. The vast majority of cases are not making progress in procedural terms, and in those cases where there are new developments, in general they involve acquittals or the closure of investigations. In other words, total impunity.

Moreover, the outcomes of the road map agreed at the ILO have been absolutely insufficient and have not represented any significant changes regarding freedom of association in the country. The Government has failed to implement the road map, thereby disregarding the value of tripartism. Furthermore, the solution put forward by the ILO with respect to violence against trade unionists has been ignored.

Nor has the Government complied with the repeated observations of the ILO supervisory bodies concerning the need to bring its law and practice into line to respect the provisions on freedom of association and collective bargaining contained in the respective international Conventions ratified by Guatemala.

Recurring references are made to the willingness to engage in dialogue but on many occasions not even the tripartite forums on international labour Conventions are respected.

We are bound to note with regret that being a trade unionist in Guatemala is just as dangerous now as it was nine years ago, when the road map was signed.

Therefore, notwithstanding the reiteration of our commitments to making every possible effort to implement the pledges of the road map and, in general, to give effect to the rights of working people, we, the trade unions, request this Conference to call on the State of Guatemala to take specific action to guarantee the rights established in the Convention, and also in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), on account of its nature and convergence.

In light of the above, we, the trade unions, will insist on the need to establish a Commission of Inquiry for Guatemala, just as we stated in the complaint already submitted several years ago.

Government member, France – I have the honour of speaking on behalf of the European Union (EU) and its Member States. The candidate countries Montenegro and Albania, and the European Free Trade Association country, Norway, Member of the European Economic Area, align themselves with this statement.

The EU and its Member States are committed to the promotion, protection, respect and fulfilment of human rights, including labour rights, such as the right to organize and freedom of association.

We actively promote the universal ratification and implementation of fundamental international labour standards, including Convention No. 87. We support the ILO in its key role of developing, promoting and supervising the application of ratified international labour standards and of the fundamental Conventions in particular.

We wish to recall the commitment made by Guatemala, under the trade and sustainable development chapter of the EU–Central America Association Agreement, to effectively implement in law and practice the fundamental ILO Conventions.

Notwithstanding the closing of the complaint by the 334th Session of the Governing Body three years ago, the EU and its Member States continue to follow very closely the effective implementation of the Convention in law and practice, including the technical cooperation programme, and remain engaged with Guatemala on labour issues.

Tripartite consultations and meaningful, effective social dialogue are essential foundations for the application of fundamental principles and rights at work.

On the basis of the most recent report of the Committee of Experts, we strongly regret that, despite discussions at the International Labour Conference and in the Governing Body, the existence of the National Tripartite Committee, and technical assistance provided by the Office, there has been a lack of tangible progress in the implementation of the Government’s commitments with respect to the effective implementation of the Convention since the closure of the complaint.

While duly noting the information provided by the Government and recognizing the importance of the initiatives called for by the Subcommittee on the Implementation of the Road Map, we remain deeply concerned at the persistence of serious acts of anti-union violence, including murders of trade union officials and members, as well as the related situation of impunity. Effective protection of trade union officials and activists needs to be ensured to prevent any further acts of anti-union violence. In the absence of efforts to strengthen the prevention, protection and response mechanisms in respect of threats and attacks against trade union officials and activists, this regrettable situation is likely to continue, if not to become worse. In this regard, we call for effective investigations and prosecutions of the perpetrators and instigators of these acts.

We once again urge the Government to adopt, without delay, the legislative reforms that were submitted by tripartite consensus to the National Congress in order to fully comply with the Convention and implement the road map. We note with concern the continued challenges related to the process of trade union registration.

In connection with the above, we emphasise the importance of the effective implementation of the recommendations evolving from the technical assistance provided, including the dissemination of awareness-raising campaigns on freedom of association and collective bargaining.

We are happy to announce that, in the framework of the bilateral programme providing support for decent employment, the EU endorsed an agreement with the Government and the ILO only two weeks ago. As a result, the Ministry of Labour and Social Welfare and other state institutions and social partners are supported in fulfilling the commitments included in the road map.

The EU and its Member States will continue to follow and analyse the situation and remain committed to close cooperation and partnership with Guatemala in the fulfilment of all its obligations under the ILO Conventions, with a specific focus on the fundamental Conventions such as Convention No. 87.

Government member, Chile – I am making this statement on behalf of a significant majority of Latin America and Caribbean countries. We thank the Minister of Labour and Social Welfare of the Government of Guatemala for the information which he has presented today to this Committee regarding the application of the Convention. We recognize the commitment of the Guatemalan constituents towards strengthening the processes of negotiating and reaching agreements within the National Tripartite Committee and its subcommittees, giving priority to social dialogue and respect for international labour standards. We invite the Government to intensify its efforts and ensure the progress of the road map to consolidate social dialogue, a task performed so far by the National Tripartite Committee, and to ensure the application of the Convention. We recall that the ILO Governing Body provides an annual follow-up to the implementation of the road map relating to this Convention in the context of the programme to strengthen the National Tripartite Committee in Guatemala for the purpose of the effective application of international labour standards. A significant majority of Latin America and Caribbean countries also recalls the appeal by the Government of Guatemala to donors, during the presentation of the first annual report on the application of the above-mentioned programme in November 2021, to contribute financially and technically to strengthening national resources and efforts intended for its implementation. It is noted that the actions referred to by the Government of Guatemala have been financed with own funds and with funds located by the Office originating from other programmes.

Lastly, we reiterate our concern at the simultaneous use of mechanisms to deal with the same allegations relating to a country which is already under consideration by the Governing Body. We consider that the application of mechanisms could weaken the functioning of the ILO supervisory bodies.

Employer member, Panama – In light of the report of the Committee of Experts and after hearing and analysing the Government’s reply and detailed explanations reporting on progress made in relation to the road map adopted on a tripartite basis, a process which, as Central American citizens and employers, we have followed with interest, we note with concern the situation of insecurity suffered by Guatemala, which affects trade union leaders and members and the general public.

The personal safety and physical integrity of every person has no price. Enabling national and even regional social and economic development is fundamental for creating a climate of stability in the country. That said, it is important to emphasize that the figures and statistics reported in the criminal proceedings conducted under the principles of judicial independence and due process, which are fundamental under the rule of law, investigated by the Public Prosecutor’s Office and conducted in the courts, indicate a large number of rulings in cases of violence which form part of the Committee of Experts’ report. In this regard, it is reported that even the budget of the Public Prosecutor’s Office has been increased and a Special Prosecutor’s Office has been established, which is an indication of great interest in complying with the Committee of Experts’ requests and tackling the scourge affecting us.

Furthermore, it is important to emphasize that social dialogue and tripartite agreements are fundamental for achieving the legislative reforms referred to in the Committee of Experts’ report. We know that in the past a dialogue was held on the adoption of legislative proposals, and this ground to a halt. However, we consider that it should be resumed as urgently as possible; dialogue is an obligation rather than a right, and here we are all called on to make every effort in good faith for the benefit of the population of the country.

Worker member, Botswana – I have the honour of speaking on behalf of the Southern Africa Trade Union Coordination Council (SATUCC). Any effort at improving the situation of freedom of association in Guatemala is being compromised due to bad faith on the part of the Government.

The SATUCC notes that the Committee of Experts recalled that the Governing Body had requested the Office to develop a technical cooperation programme to boost progress in the implementation of the road map adopted in 2013. The programme entitled “Strengthening of the National Tripartite Committee for the effective application of international labour standards” provided for annual follow-up reports by the ILO for three years from adoption of the programme. Counter to the objectives agreed upon in the road map, the Guatemalan Government is now denying that the road map’s objectives are valid.

One way the Guatemalan Government has invalidated the road map’s objectives is by not acknowledging that the workers get representation. It has come to our attention that Guatemala’s Ministry of Labour has consulted the ILO on verifying the representativeness of the workers’ delegates participating in the National Tripartite Committee. Denial of these labour standards hurts workers by violating their rights to organize and bargain collectively.

The Guatemalan Government’s attitude contrasts with the information they provided to the Committee of Experts in which they acknowledged that “the active role played by the National Tripartite Committee was in compliance with the road map”.

Questioning the representation of the trade union organizations that are part of the democratic dispensation of labour relations in Guatemala is clear evidence that the commitments made to the National Tripartite Committee are not being fulfilled. This questioning of trade union representation is also a blow to the social partners since it appears that the Guatemalan Government now does not recognize workers as one of the key actors in social dialogue.

The consultation of the Guatemalan Government with the ILO is taking place in a context that fails to comply with the judgments on the reinstatement of workers dismissed for anti-union discrimination and the non-observance of the obligations arising from the agreed upon objectives of the road map.

It beggars belief that, in a country where trade unionists are harassed, killed and threatened for over four decades, its Government decides to open a discussion to decide whether workers are being properly represented or not. This is not a deft strategy at union-busting, it is an unquestionable action being couched in state paranoia. In our region in Africa, our anti-colonial and apartheid experiences tell us that this practice is an act of bad faith and a clear bullying tactic that a conscionable society must stand up against.

Employer member, Honduras – We have listened to the explanations of the Government of Guatemala concerning the progress made in relation to the road map adopted in 2013 on a tripartite basis, a process which we have followed up on as Central American employers.

Guatemala is suffering from a situation of insecurity which affects trade union leaders and members, just as it does the rest of the population. However, the figures seem to support the fact that the authorities of that country, the Public Prosecutor’s Office and the courts, are working on resolving the cases of violence described in the report, which we think is worth highlighting.

As employers we condemn any kind of violence, but we need to understand that insecurity can only be resolved with transparent processes that strengthen countries’ systems of justice. These processes can take years but we emphasize that, as a result of the tripartite agreements reached in Guatemala, it has been possible to cast light on many of the cases relating to trade unionists in Guatemala, with the conclusion that there have not been any cases of anti-union violence.

On the other hand, we see that the legislative reforms to which the Committee of Experts refers have still not been adopted as bipartite and tripartite agreements exist on several subjects referred to by that Committee. We insist on the need to support and trust in social dialogue as the appropriate mechanism for the social partners and the Government to provide an adequate response to all the topics raised.

Many of the legislative reforms recommended by the Committee of Experts are dialogue processes which require a great deal of discussion. It should be emphasized that these are already at an advanced stage and so agreements will soon be reached that will result in legislation which is totally in line with the provisions of the Convention.

We are aware of the process which was conducted in the past by the social partners regarding the adoption of legislative proposals. We hear that this dialogue is due to resume on the understanding that all the stakeholders must act in good faith and with a real willingness to reach agreements.

Lastly, we ask this Committee to continue trusting in the efforts made by the workers, employers and Government of Guatemala, because through social dialogue they are reaching favourable solutions which have contributed to combating impunity and thus provide guarantees for exercising the right to freedom of association in Guatemala.

Worker member, Colombia – I am speaking on behalf of the three Colombian trade union confederations, the Single Confederation of Workers of Colombia (CUT), the Confederation of Workers of Colombia (CTC) and the General Confederation of Labour (CGT), who view with immense concern the degree of violation of freedom of association in Guatemala and the serious risk to the lives of union leaders in this country.

The situation of violence and persecution experienced by our fellow trade unionists in Guatemala has escalated to even more serious levels, with impunity and government neglect persisting. Workers have reported the murder of more than 100 union leaders in recent times. On 7 May 2021, Cinthia del Carmen Pineda Estrada, leader of the Education Workers’ Union of Guatemala (STEG), was murdered, and other serious acts of anti-union violence were committed in 2020 and 2021. In addition, access to justice for workers has been ineffective and almost non-existent, with only 22 convictions.

We are concerned about the regulatory elements in Guatemala that jeopardize the right to strike and also provide for the possibility of imposing compulsory arbitration in non-essential services; a situation that impedes the right to strike, a fundamental element for the free exercise of freedom of association accorded to organizations under the Convention.

It will be impossible to overcome this burden of the Government’s non-compliance with its international obligations when neither before nor now have the necessary conditions and actions been put in place to investigate the murders of the members of the trade union movement and, as the ITUC states, Guatemala is one of the most dangerous countries in which to carry out union activity.

Not heeding the calls of the Committee of Experts and the Committee on Freedom of Association is inexplicable and absurd when lives are at stake. This lack of action and results for the protection of union leaders heightens the possibility of further murders of our colleagues, whose important work to strengthen harmonious labour relations we appreciate.

The persecution and arbitrary prosecution of trade unionists who honourably defend the principles of the ILO and the tenets of the Convention must cease, and we urge, as did the Committee of Experts, that investigations and sanctions be accelerated, as well as protection and guarantees for the exercise of freedom of association and respect for fundamental rights, which cannot provide respite if they are not upheld seriously.

Government member, United States of America – This is the Committee’s first time discussing the Government of Guatemala’s compliance with the Convention since closure of the long-standing article 26 complaint. We note the Committee of Experts’ deep concern regarding the serious and ongoing violation of the Convention. We urge the Government to make meaningful progress on the issues that were the subject of the complaint, in both law and practice, in the almost four years since its closure. We call on the Government to fully implement all outstanding recommendations from the various ILO supervisory bodies, including the 2013 road map. To that end, we urge immediate and effective action to improve investigative processes and increase prosecutions of those responsible for acts of violence and murder against trade unionists; recognize threats, intimidation and harassment against trade unionists as acts of violence; create a safe enabling environment that allows all workers to freely exercise their rights, including the strengthening of mechanisms to protect workers’ rights; adopt legislation to bring its laws into line with international labour standards on freedom of association and collective bargaining, including by institutionalizing the National Tripartite Committee and to give effect to the decision on the right to strike reached by tripartite consensus; continue to improve the system for registering trade unions and collective bargaining agreements and for issuing credentials to union leaders; and ensure the timely issuance of notices to employers of workers intent to unionize. This will require the Government to provide the labour inspectorate with additional resources to effectively operate in all regions of the country, particularly in the agriculture and maquila (export processing) sectors where labour law violations related to freedom of association and collective bargaining especially persist.

We remain committed to working with the Government to advance workers’ rights in the country. We urge the Government to implement these recommendations in close cooperation with the social partners in the ILO.

Worker member, United Kingdom of Great Britain and Northern Ireland – Since 2013, the ITUC has been working in partnership with Guatemala’s oldest private sector union. That banana union was, for several years, one of the most persecuted unions in the world, with 12 senior members murdered in the seven-year period, including one leader murdered just five days after meeting with the Ministry of Labour to complain about harassment. None of those murders have ever resulted in prosecutions. Despite this traumatic history, the union was determined to become even stronger, and to establish constructive tripartite dialogue with their previously hostile employers and the Labour Ministry that had failed their colleague.

Their success is a perfect illustration of the fact that the Convention enables other fundamental rights. A report from 2021 showed that the unionized banana workers of the Caribbean coast earned twice as much as their non-unionized colleagues elsewhere. They worked, on average, 12 hours less a week. One notable finding of the report was that 58 per cent of women in non-union plantations faced sexual harassment at work compared to only 8 per cent of women at unionized plantations.

During the COVID-19 pandemic, at unionized workplaces, to respect distancing, unions negotiated special transportation and the safe shift distribution of workers in packing plants. But 85 per cent of banana employment is in the southern region, where wages are lower, conditions of work more precarious, and unions are non-existent.

The stark difference between the two groups of workers puts the unions’ achievements at risk. One major banana multinational abandoned five unionized farms in the north and now produces the same amount of fruit once produced on those northern facilities on outsourced – and non-union – facilities in the south. The simple answer – unionizing the south – is impeded by the violent reaction to the previous attempt to introduce unions. In 2007, labourers from a farm in Escuintla moved to unionize.

Less than a year after the organization’s formation, one union leader was shot dead. A month later, the daughter of the union’s general secretary was raped by armed men allegedly linked to the management of the plantation. Investigations into these cases have not been solved.

The union collapsed soon after, and no other has yet risen to take its place anywhere in the region. As one online fruit industry publication puts it: “It is simply not credible to conclude that there are no trade unions in the south because there are no injustices or improvements to be made; workers have not formed or joined unions because employers discourage independent trade unions and workers fear reprisals.”

The absence of unions in the south is persistent, and the danger has not gone away. Just a few weeks ago, a national trade union leader who had just been involved in a discussion with a southern employer over the possibility of a trade union leadership training school, received death threats, as did his family.

Following this, the union told me the Government’s interest in violating their rights, especially in southern Guatemala, has grown overwhelmingly. Employers there fail to comply with the minimum guarantees of the Labour Code and those who try to organize a union are persecuted and fired from their jobs, just because of claiming their rights.

While attempts to destroy the unions in the north failed, they are now able to bring the benefits of collective bargaining to their members. It is clear that for most of the banana industry and across the private sector there are still too many barriers to work, such as freely joining or forming trade unions, and a culture of low pay, long hours, and abuse is thus perpetuated.

Worker member, Mexico – We, the workers of Mexico, express our solidarity with our fellow workers of Guatemala in the light of acts of violence against the leaders of trade union organizations, acts that hurt and violate the principles of the protection of their integrity. We regret that these events have been recurring for more than 20 years, and we urge and request the Government to maintain a rule of law that guarantees the correct application, not only of fundamental labour standards, but also of the basic principles of human rights. At this Conference are our colleagues from Guatemala who have been victims of violence and have received death threats that have been reported to the Public Prosecutor’s Office.

Another point of concern is the questioning of the representativeness of the presidency of one of the trade union confederations, an attitude that limits freedom of association and contradicts the attempts to implement a tripartite dialogue to work through the observations of the ILO supervisory bodies.

Although there have been several round tables for dialogue, they have not yielded the expected results, showing that the problems continue to be deep-rooted and systemic. In this regard, we express our concern that these measures fall short, since, although there is a road map, its purpose is to solve the underlying problems and not only to serve for the presentation of reports that may be far from the day-to-day reality for unions.

Violence, attacks by the media and intimidation against trade unionists must end. The correct application of the Convention must be accompanied by measures that guarantee the safety of trade unionists without them being branded as bad Guatemalans for genuinely raising their voices to assert their labour rights.

We believe that it is time to take urgent measures to ensure the protection of labour rights and freedom of association, so it is important that the Government accepts a request for a high-level tripartite mission to analyse on the ground the violations and the conditions that union leaders are enduring in our sister country.

Worker member, El Salvador – We have before us a case of repeated violation of the Convention, which, in addition to the numerous observations received from the Committee of Experts, this Conference Committee discussed in 2011, 2013, 2015, 2016, 2017 and now again. As was said during the discussion of the case of Ecuador, this “is no longer a technical or legal discussion”, but a case of the political stubbornness of different Governments over the years.

In addition to the legislative aspects highlighted by the Committee of Experts, and in spite of the data provided by the Government, attacks on trade unionists continue to take place with total impunity. For example, the headquarters of the Union of Workers of the Legislative Body were attacked and set alight, and to date the perpetrators have not been identified. In addition, its union leaders and members of the executive committee, along with other union members, were fired and then criminally prosecuted when they tried to hold a press conference to denounce the unjustified dismissals.

On 17 January 2019, the leaders of the National Union of Health Workers of Guatemala were arrested along with nine other people as part of an investigation for an alleged fraud against the State. The fraud in this case concerned a collective agreement that the now detained concluded with the Ministry of Health in 2013. This collective agreement was the result of a previous negotiation; as such, it contained both rights and obligations for the parties. The Anti-Corruption Prosecutor’s Office characterized as fraud an agreement that, in its interpretation, represented a detriment to the State because it was unable or unwilling to comply.

The Government informs that the Office of the Prosecutor for Crimes against Judicial Officials and Trade Unionists continues to carry out exhaustive investigation efforts in compliance with the rule of law and highlights a great investment in security for threatened trade unionists. However, there are currently more than 25 judicial officials, including judges and prosecutors themselves, who are in exile because of acts of intimidation and repression against them for carrying out their work, so not even those who should protect are protected.

In conclusion, we urge this Committee to adopt conclusions that reflect the gravity of this case, and the ILO Governing Body to resume the establishment of a Commission of Inquiry on Guatemala.

Worker member, United States – Once again, the case of Guatemala’s long-standing non-compliance with the Convention is under discussion by this Committee. Despite decades of engagement by the ILO’s supervisory mechanisms and technical assistance projects, Guatemala trade union leaders continue to place their lives and livelihoods at serious risk.

Since 2005, the Committee of Experts and the Committee on Freedom of Association have been examining a constant stream of serious acts of violence against trade union leaders and members, including numerous murders, the vast majority of which remain in impunity. Despite these efforts, the violence and threats continue with nine more trade union leaders murdered in 2020 and 2021. Earlier we heard about the threats against Carlos Mancilla and his family. This is especially alarming since Mr Mancilla is the President of Guatemala’s National Tripartite Committee, which has been tasked with helping implement the 2013 road map.

Beyond the issue of violence, the Government of Guatemala is generally failing to effectively enforce its labour laws related to freedom of association and collective bargaining.

In their filing to the Committee of Experts in relation to this case, the Guatemalan trade unions identified 90 separate cases where employers are violating Conventions Nos 87 and 98 with impunity. These findings track with a 2017 report from an independent arbitration panel which found that Guatemala was failing to effectively enforce its domestic labour laws, as required under the Central America Free Trade Agreement.

As the Committee on Freedom of Association and the Committee of Experts have said many times, “trade union rights can only be exercised in a climate free from violence, intimidation and threats of any kind against trade unionists”. Unfortunately, Guatemala continues to fail in this essential obligation.

Accordingly, we once again call on the Government to take urgent action to address threats and violence against trade unionists and comply with the other recommendations contained in the Committee of Experts’ report.

Worker member, Spain – We note with deep sadness and disappointment how the work that the ILO has carried out for years in Guatemala for the effective application of international labour standards is being disregarded. Despite the technical assistance offered by the Office and the repeated requests of the Committee of Experts, the Committee on Freedom of Association, this Committee and the Governing Body itself, the Government of Guatemala continues to fail to take the necessary measures to bring its law and practice into line with the provisions of the Convention.

The Government continues to impede the registration of trade union organizations, the enforcement of anti-union dismissal rulings, the development of collective bargaining and the exercise of the right to strike. Likewise, it continues to do little to put an end to the serious situation of violence and harassment suffered by union members and their families.

The trade union movement in Guatemala is suffering an intolerable policy of terror and repression, which has not only been perpetuated over time but has intensified in recent years. Trade unionists are illegally detained and imprisoned; they are kidnapped and murdered; they are singled out, disparaged and publicly exposed by the media, and are exposed to death threats for defending better living and working conditions, as was recently the case for our colleague Carlos Mancilla, to whom we convey our solidarity, support and respect.

Faced with the inaction and indifference of the Government of Guatemala with regard to the repeated and serious violations of the right to freedom of association, it is time for this Committee to provide a firm and forceful response. For this reason, we request the Committee to invite the Governing Body to appoint a high-level tripartite mission to examine the failure of the Government of Guatemala to implement the Convention.

Observer, IndustriALL Global Union – I am speaking on behalf of IndustriALL Global Union, which is an international trade union federation representing more than 50 million workers in the mining, energy and manufacturing sectors around the world, including Guatemala. As mentioned earlier by members of the Workers’ group, the fundamental rights of workers are currently being violated in Guatemala through threats and intimidation that seriously hinder the full application of the Convention. Evidently there is a major attack against union leaders that continues on a daily basis as they defend workers’ rights.

Here, I would like to mention some concrete examples from the field of how workers cannot exercise freedom of association. A union affiliated to IndustriALL, the Trade Union Federation of Food and Allied Industry Workers (FESTRAS) and one of its rank-and-file members had an eight-year labour dispute with the Guatemalan subsidiary of a Luxembourg-based steel company. A complaint process was initiated before the Organisation for Economic Co-operation and Development (OECD) because the company refused to recognize and negotiate with the union in Guatemala.

Finally, after eight years, the local union succeeded in registering the first collective agreement on working conditions. Once again, it took eight years to reach a collective agreement during which the workers suffered greatly, as there is no enabling environment in the country to ensure that workers’ fundamental rights are respected.

Unfortunately, our affiliate FESTRAS has informed IndustriALL that another of its rank-and-file members continues to face violations of Conventions Nos 87 and 98. In the subsidiary of a multinational company headquartered in the Republic of Korea, the enterprise does not respect the right to freedom of association. Two weeks ago, the company shut down its operations and dismissed a number of workers in an attempt to prevent union membership. It should be added that the Korean enterprise’s workers have tried to move to maquilas (export-processing enterprises) in the sector. In addition, the subsidiary of the multinational company uses physical and psychological violence, intimidation and threats against the local union. The general secretary of the local union was harassed and received death threats, so her emergency departure from the place where she lived with her young children was organized and she was moved to a safe location.

There is another sector in the Guatemalan economy where freedom of association is virtually impossible, and where there is immense pressure against unions: the maquila sector. Workers in the maquila sector generally fear that companies may retaliate against them if they decide to join a union. They are often intimidated, threatened, blacklisted and even dismissed.

We therefore urge the Government of Guatemala to take immediate measures to establish an enabling environment for workers to exercise their fundamental right to freedom of association with clear timelines and in compliance with the Convention.

Government representative, Minister of Labour and Social Welfare – I wish to begin by reiterating that the Government of Guatemala deeply regrets the violent deaths of all persons in our country, including trade unionists.

Next, I would like to take this opportunity to say that I have listened carefully and with interest to the interventions of the honourable representatives of the Employers’ group, Workers’ group and Government group, and to point out that, despite the fact that we have had to overcome the crisis left by the COVID-19 pandemic, in addition to natural disasters such as the Eta and Iota storms, to be tough when it comes to the economy and to monitor those who benefit least from economic growth and still suffer the effects of the pandemic, the Government of Guatemala has maintained and maintains its commitment to redouble efforts to address the observations of the Committee of Experts and to act with determination to improve compliance with the Convention. We also believe that, as referred to at the time before the representatives of the workers and employers, we recognize and reaffirm that it is necessary to focus tripartite efforts on a national approach as a medium- and long-term strategy, which goes beyond the short term with what has been discussed in the ILO supervisory bodies and allows us to obtain sustainable results.

We are aware that the trust-building processes and the results of these processes will take time and may take longer than desired. However, we must continue our efforts to face the challenges ahead of us, such as our recent national history, where there is divergence on certain points. Emphasizing that the most important thing is to prioritize tripartite dialogue, social dialogue and the opportunity that this space offers to the three sectors that make up the honourable National Tripartite Committee, the strength of which is that, beyond reaching agreements, we can continue dialogue and advancing concrete actions to implement the road map as we have been reporting, efforts that come to fruition, as I have already indicated, through concrete actions, for example Ministerial Order No. 288 of the Minister of the Interior, which by instruction of the President of the Republic, Mr Alejandro Giammattei, was signed on 3 June and published today, thus restarting the operations of the unit for analysing the attacks on trade union leaders and members, through which we focus that analysis on prioritizing our union leaders and members and avoiding any recurrence of regrettable cases such as that of the National Tripartite Committee President, Mr Carlos Mancilla, to whom personal protection measures were rapidly assigned.

In observance of the application of the ILO fundamental Conventions, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Declaration of Philadelphia, respectfully I would like to reiterate the commitment of the State of Guatemala to compliance with international conventions and especially the ILO fundamental Conventions, towards which constant progress has been reported, recalling that the most important lesson that has been obtained from the road map process, which as already mentioned dates back years, and its key indicators proposed by the tripartite actors in 2015, is the need to build trust and consolidate genuine social dialogue for our country accompanied by continual displays of political will that have transcended changes of government and of those who lead each of the institutions that have responsibility for the implementation of the road map and the results for each of its key indicators. This has been reported to the ILO Governing Body and will continue to be reported under the technical assistance and cooperation programme, a provision referred to at its 340th Session in November 2020, in observance of the national tripartite agreement signed in November 2017 in Geneva, Switzerland.

Before concluding, and because I consider that the circumstances warrant it, I would like to refer to one of the points that was previously mentioned, and I would like to reiterate that the Government of Guatemala has at no time attempted to interfere in or question the internal processes of workers’ or employers’ organizations. It has only attempted to lay the foundations for respecting the principles that underpin democratic institutions, the decisions and internal processes of the organizations in terms of their representativeness in accordance with the principles established in the Convention itself. The State of Guatemala is committed to preventing and punishing any act of violence, especially if it is based on anti-union discrimination.

Our recent history traverses the obstacles imposed by social inequality within the context of a globalized economy and the persistence of historical issues linked to the transition from a society of conflict to a democratic society, which influence credible actions in institutional consolidation that guarantee respect for the fundamental rights of freedom of association and collective bargaining, beginning with the acceptance and practice of the basic aspects that support this system, such as the institutional framework for representativeness of both workers’ and employers’ organizations.

The true democratic basis for the free and voluntary practice of workers’ organizations will only be possible when the strengthening of such organizations, through sufficiently broad affiliation processes, constitutes a practice accepted by society as a mechanism that guarantees the development of democratic social relations and a stable, productive and, above all, inclusive economy. This is the only way that social justice, as a goal of this organization in labour relations and a constitutional principle of the Republic of Guatemala, can be a reality, which means that talking about the subject in a transparent and direct way does not equate to questioning but implies the need to address the subject as a fundamental part of the democratic processes.

Our beautiful Guatemala is eager to reach tripartite consensus to present solutions to the needs and concerns of the Guatemalan population in the world of work. Undoubtedly, we must recognize the importance of continuing with social dialogue and show signs of humility in requesting help when it is needed. In this regard, I reiterate our firm wish that more countries will contribute financially to the technical assistance and cooperation programme that will surely contribute to the efforts reflected by the Government. I can only encourage my fellow constituents of the National Tripartite Committee to resolve issues related to labour relations and freedom of association, and the countries to support us and the continuation of constructive dialogue and results that will allow us to continue reporting to the ILO Governing Body within the framework of the technical cooperation programme.

Worker members – Regrettably, the replies provided by the Government of Guatemala have not calmed our deep concern at the difficult situation of workers and trade unionists in the country. We also regret that the spokesperson for the Employers’ group claims to have seen signs of progress. As long as there is even one murder in Guatemala, it is indecent to speak of progress. The Worker members will never make concessions on this.

The Worker members deplore, in the most robust terms, the Government’s lack of will to stand up once and for all against the many anti-union murders and acts of violence and harassment, the situation of impunity surrounding these crimes and the general climate of violence and fear which acts as a strong dissuasive factor against workers freely exercising their right to establish and join unions and collectively defend their interests.

Guatemala has been the subject of many reviews by the ILO supervisory bodies. Despite the recommendations made, the situation in the country is continuing to worsen, with nine trade union leaders and members being murdered in 2020–21. The investigation and prosecution of the many cases of murder are, in the best instances, slow, and in the majority of cases have ground to a complete halt. Other violent anti-union acts, including attacks, death threats and harassment, are simply not investigated by the authorities. In this regard, the Employers’ delegates of Guatemala and Honduras have questioned the link between these murders and trade union activities. It is undoubtedly a surprising coincidence that all the persons I referred to in my first intervention were trade unionists.

Guatemala cannot continue to ignore its responsibilities. The seriousness of the crimes committed and the surrounding impunity cannot continue to be ignored and requires urgent, decisive and effective action. Human lives are at stake.

The Worker members resolutely recall that freedom of association cannot be exercised unless human rights are fully respected and safeguarded, and particularly the right to life and personal safety.

We urge the Government of Guatemala, within the context of ILO technical cooperation, to: investigate all acts of violence against trade union leaders and members, including murders, as well as attacks and physical and death threats, intimidation and harassment, with a view to determining responsibilities and punishing the instigators and perpetrators of these acts, taking fully into account the trade union activities of the victims in the investigations; provide rapid and effective protection to all trade union leaders and members who are at risk with a view to preventing further acts of anti-union violence, by increasing the budget for protection programmes for members of the trade union movement so that those who are protected do not have to personally cover the associated costs; eliminate the various legislative obstacles to the freedom to establish trade unions and revise the procedures for applications for registration; ensure that rulings reinstating workers who have been victims of anti-union dismissals are given effect in practice; adopt the necessary measures for the dissemination of the awareness-raising campaign on freedom of association and collective bargaining in the national media, and immediately refrain from stigmatizing and discrediting union officials, their organizations and collective agreements in the media.

With reference to the many legislative issues raised over the years by the Committee of Experts, the Worker members emphasize that the current legislation is a serious obstacle to the right to establish and join unions in the public sector, at the sectoral level and in small enterprises, which account for the immense majority of enterprises in Guatemala. The legislation also imposes undue restrictions on the right to strike.

We regret the lack of progress in bringing the national legislation into conformity with the Convention and we urge the Government of Guatemala to amend the legislation in consultation with the social partners and in accordance with the Convention and the recommendations of the Committee of Experts. We urge the Government to accept, before the next session of the Committee of Experts, a high-level tripartite mission. And, in view of the seriousness of the issues raised, we call for this case to be included in a special paragraph of the Committee’s conclusions.

Employer members – We see significant grounds for making a number of proposals, as I will indicate below. But beforehand, I wish to place emphasis on the reference made in the statement by the Minister to Ministerial Order No. 288, published on 3 June, creating the unit for the analysis of attacks against trade union leaders and members. This seems to be excellent news. Nevertheless, within the context of the ILO, where there are tripartite mechanisms, we would have liked this measure to have included the possibility of the participation of employers’ representatives.

Second, we would like to welcome the decision concerning the agreement with the EU, as indicated by the EU representative, on institutional strengthening and the development of programmes, which the Government of Guatemala has already announced.

Third, and I cannot let this pass, I would like to say that noting the progress achieved does not mean that everything has been resolved. It is like a patient who was in intensive care and is moved to special care and then goes home to complete the recovery; it does not mean that the patient is entirely healthy, but that there has been an improvement. And indeed we observe, with all the details that I gave, that there have been improvements. In particular, I would like to recall what the Employer representative of Guatemala said, that over the past decade, according to official figures, there have been over 60,000 murders in Guatemala. We are saddened by all these lives lost, all the lives of workers’ representatives, but also probably many other lives, certainly including, although we do not have a list, Guatemalan employers.

The exercise of freedom of association can only take place in an environment free of violence, intimidation and threats of any kind. To achieve this, governments have to ensure that freedoms can be exercised in practice. And, for this reason, we consider that certain proposals have to be made: the first relates to the indication in the report by the Special Prosecutor concerning the organization by the Public Prosecutor's Office since 29 November 2021 of weekly meetings on Fridays for workers’ representatives with the Prosecutor-General of the Office of the Special Prosecutor for Crimes against Judicial Officials and Trade Unionists to deal with related cases. And we are informed that up to the date of the report, workers did not attend any meetings.

A first proposal by us is to invite and encourage workers and their organizations to participate in meetings of this type that are being organized by the public authorities in Guatemala.

Second, with reference to acts of violence, which sadden us, we believe that all acts of violence against trade union leaders and members must be investigated to determine responsibilities and punish all the perpetrators and instigators. It also appears to us that effective protection needs to be provided rapidly to all trade union leaders and members who may be at risk with a view to preventing any future acts of anti-union violence.

Third, it seems to us to be important to encourage the Government, within the framework of the technical assistance programme, to develop national dialogue with the most representative employers’ and workers’ organizations, with a view to making progress and facilitating the procedures for the registration of unions in Guatemala.

Fourth, it seems to us to be important for there to be dissemination in the media at the highest level through a campaign on the recognition of freedom of association and collective bargaining.

Lastly, I wish to note the interest in the Employers’ group for follow-up through the Governing Body and the subsequent reports which the Government of Guatemala has undertaken to provide on the implementation of the road map.

Conclusions of the Committee

The Committee took note of the oral and written statements made by the Government representative and the discussion that followed.

The Committee deplored and deeply regretted the persistent acts of general violence and the violence against trade union leaders and members, including murders and physical aggression, and the culture of impunity that prevails in the country.

Taking into account the discussion, the Committee calls upon the Government, in consultation with the social partners, to:

- investigate without delay all acts and threats of violence against trade union leaders and members with a view to identifying and understanding the root causes of violence, taking into account their trade union activities as a motive, determining responsibilities and punishing the perpetrators;

- provide rapid and effective protection to all trade union leaders and members who are under threat by increasing the budget for such programmes and ensure that protected individuals do not personally have to bear any costs arising from those schemes;

- eliminate the various legislative obstacles to the free establishment of trade union organizations and, in consultation with the social partners, resolve the handling of registration applications;

- ensure that judicial decisions of reinstatement in employment following anti-union dismissals are enforced without delay;

- increase the visibility of the awareness-raising campaign on freedom of association in the media and ensure that there is no stigmatization of trade unions, their leaders and collective agreements;

- bring national legislation into conformity with the Convention, in consultation with the social partners; and

- redouble efforts to fully implement the road map adopted on 17 October 2013, in consultation with the social partners.

The Committee invites the Government to avail itself of technical assistance from the Office to give full effect to these conclusions.

The Committee requests the Government to submit a report to the Committee of Experts by 1 September 2022 providing information on the application of the Convention in law and practice, in consultation with the social partners.

Government representative – I would like to reiterate Guatemala’s commitment to continue monitoring compliance with the Convention, and to redouble our efforts not only to continue building a more mature dialogue among the sectors that make up the National Tripartite Committee, but also to show clear signs of the progress which we have made in implementing the road map; and that we can, as a country, build trust among the sectors involved at the national and international levels so that we can see the progress of this commitment, on which we have been reporting, in all the areas that the ILO has indicated to us.

Therefore, we take note of and will address the conclusions that have just been presented in this room.

Individual Case (CAS) - Discussion: 2017, Publication: 106th ILC session (2017)



The Government provided the following written information.

Investigations of murders and convictions handed down to date

The Government of Guatemala reiterates its concern at the actions perpetrated on the victims. It is continuing the relevant investigations with the aim of fully elucidating the facts and circumstances surrounding the murders of the trade union members and leaders, identifying the perpetrators and securing convictions in accordance with the law. In March 2017, at the 329th Session of the Governing Body, the Government of Guatemala reported on 15 court rulings. Since then, the Special Investigation Unit for Crimes against Trade Unionists has reported the following progress: three court convictions; one acquittal; four persons undergoing criminal prosecution proceedings; two arrest warrants put into effect; and one termination of criminal prosecution proceedings. Moreover, the Special Investigation Unit has made investigations to establish and individually identify the suspected perpetrators of the crimes, including the following procedures: statements by indirect and immediate witnesses, statements by victims, collection of evidence, audio visual evidence, property searches, inspections, examination of property records and expert reports. It should be noted that no anti-union motives were established in any of the 18 cases; nevertheless, we are committed to giving the necessary protection to any trade unionists that require it. Note should also be taken of the undertaking given by the Ministry of Labour and Social Welfare, which meets periodically with the authorities of the Public Prosecutor’s Office and the International Commission against Impunity in Guatemala (CICIG), to follow up the collaboration between these institutions.

Risk assessments for all trade union leaders and members under threat; assignment of corresponding protection measures

The Ministry of the Interior has reported that between January and May 2017 it received 20 requests for security measures, in relation to which the Risk Assessment Department of the Personal Protection and Safety Division of the National Civil Police undertook the corresponding investigations; as a result, the 20 requested protection measures were granted.

Requests for security measures made by the Public Prosecutor’s Office pursuant to the “Protocol for the implementation of immediate and preventive security measures for trade union leaders and members and labour rights activists”, issued in January 2017

Since January 2017, the Public Prosecutor’s Office, through the Special Investigation Unit for Crimes against Trade Unionists, has requested the Ministry of the Interior to issue 14 preventive security measures for trade union leaders and members, and has asked the National Civil Police to issue eight perimeter security measures.

Report on the free 1543 emergency helpline for receiving complaints of violence or threats against human rights advocates

Since January 2017, the Ministry of the Interior has reported that none of the calls received on the 1543 emergency helpline were connected with trade union leaders or members. Accordingly, with a view to informing the trade union sector of the free helpline and to promote appropriate use thereof, a campaign has been launched to publicize through social media the 1543 emergency helpline for the protection of trade unionists. Moreover, the Ministry of the Interior has established dialogue forums (the “Unit for the analysis of attacks against human rights advocates” and the “Standing trade union round table on comprehensive protection”), which meet periodically and discuss the cases reported by trade unions and ensure the corresponding follow-up by the competent bodies. These dialogue forums seek to address in a timely fashion violations against freedom of association or the physical integrity of trade union leaders and members. In addition, these dialogue forums have been used to raise awareness among the trade unions of the “Protocol for the implementation of immediate and preventive security measures for trade union leaders and members and labour rights activists”.

Strengthening of institutions

The Government of Guatemala recognizes the importance of the commitments entered into through the ratification of the Convention. Accordingly, the Chief Public Prosecutor/Head of the Public Prosecutor’s Office issued instructions that the corresponding action should be taken to strengthen the Special Investigation Unit for Crimes against Trade Unionists, which currently comprises 19 staff members and operates within the structure of the Human Rights Prosecutor’s Office, with the addition of three prosecution offices.

Creation of special tribunals to deal with crimes involving freedom of association

Since the promulgation of Decree No. 21-2009 of the Congress of the Republic (Law on Criminal Jurisdiction in High-Risk Proceedings), the State of Guatemala has had the following judicial structure: four Courts for High-Risk Proceedings, one Court of Appeal for High-Risk Proceedings in the capital, and two Sentencing Tribunals, where proceedings may be heard in cases of offences committed against the lives of trade unionists. In this regard, the Public Prosecutor’s Office can submit a request at any time for the Criminal Chamber of the Supreme Court of Justice to consider the circumstances and allocate such proceedings to be heard by the Courts for High-Risk Proceedings. It should be pointed out that the convictions recently obtained by the Public Prosecutor’s Office in the cases of Mr William Leonel Retana Carias and Mr Manuel de Jesús Ortiz Jiménez were handed down by the Sentencing Tribunals for High-Risk Proceedings, following the recommendation of the ILO Committee of Experts.

Legislative reforms

On 16 March 2017, at an ordinary plenary sitting of members of the Congress of the Republic, Decree No. 7-2017 (Bill 5198) was passed, reforming Decree No. 1441 (Labour Code); it came into force on 6 June 2017. The fact that the text passed by Congress was the result of an agreement between trade union and employers’ organizations in the country is considered a historic event. With the entry into force of this legislation, inspection procedures have been established in law, including the potential for sanctions in the event of failure to apply labour standards, thereby guaranteeing that the State of Guatemala will act to foster a culture of compliance with labour rights and obligations. With respect to Bill No. 5199, the Ministry of Labour appreciates the fact that the ILO Committee of Experts on the Application of Conventions and Recommendations has observed with interest the Bill submitted to the Congress of the Republic on 27 October 2016, as it addresses the majority of the Committee’s previous comments. On 9 May 2017, a session of the Labour Committee of the Congress of the Republic was held, in which the employer, worker and government sectors took part, following agreement by the bipartite constituents to submit their agreements and conclusions to the Committee. The government sector endorsed its support for bipartite dialogue and is fully disposed to participate in discussions as and when requested by the constituents, taking into account the fact that the Congress of the Republic, through the chairman of the Labour Committee, has set a specific date for receiving agreements, after eight months have elapsed, during which time Congress has granted various extensions in response to requests from workers and employers for additional time. The Ministry of Labour and Social Welfare is confident that this Bill will be passed in the near future and that it includes all the additional elements referred to by the Committee of Experts in its report to the 105th Session of the International Labour Conference.

Registration of trade unions

The Ministry of Labour and Social Welfare, through the Directorate-General for Labour, receives requests for trade union registration and recognition of legal personality. In this respect, a total of 84 trade union organizations were registered in 2016; in 2017, a total of 26 trade unions have been registered so far. With regard to reforming the procedures for trade union registration, the Ministry of Labour and Social Welfare has created a dialogue forum, within which an agenda has been agreed, including items proposed by trade union organizations.

Handling and settlement of disputes relating to freedom of association and collective bargaining by the Dispute Settlement Committee

At a meeting of the Tripartite Committee on International Labour Affairs held on 18 May 2017, the Ministry of Labour and Social Welfare submitted the terms of reference for consultations on the evolving functions of the Dispute Settlement Committee, which were drafted with support from the Office of the Representative of the ILO Director-General. In this regard, the sectors agreed to hold the consultations in question and to send in their observations. In addition, the members of the Dispute Settlement Committee are planning to hold a workshop on “self-evaluation by the Committee” in the next few days.

Awareness-raising campaign on freedom of association and collective bargaining

Efforts to raise awareness have been stepped up as part of “Freedom of association and collective bargaining for a better country”, especially with media bosses, columnists, commentators, journalists, and public relations managers from the three branches of State. The campaign continues to be promoted through official websites and the social media feeds of the state bodies, as well as through interviews on government media and the distribution of posters and flyers to visitors and trade union leaders at the various institutions. Furthermore, there are plans for training on freedom of association and collective bargaining to be provided with the textile and maquila (export-processing) sector, with support from the Office of the Representative of the ILO Director-General.

In addition, before the Committee, a Government representative emphasized her country’s commitment to compliance with the fundamental labour principles and standards, including through the Memorandum of Understanding and the Roadmap, with a view to resolving the issues relating to the Convention contained in the complaint made under article 26 of the ILO Constitution. The President of the Republic was directly involved in this matter. She added that she was being accompanied by representatives from the three branches of the State, which had reaffirmed their firm commitment to compliance with the Roadmap thereby demonstrating support at the highest levels of the State. She reiterated her concern at the loss of human lives as a result of the violence in the country, including certain trade unionists, and indicated that deep-rooted structural changes were being implemented in the country. In this respect, she indicated that the Ministry of Labour and Social Welfare held regular meetings with the authorities of the Office of the Public Prosecutor and the International Commission against Impunity in Guatemala (CICIG). The Special Investigation Unit for Crimes against Trade Unionists has been strengthened and recently increased to 19 staff members and three prosecution offices. Furthermore, she indicated that, in 2016, the Ministry of Labour and Social Welfare had registered a total of 84 trade union organizations, and that, in 2017, 26 trade unions had been registered so far. With ILO support, it was planned to reinforce the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining. Efforts to raise awareness had been stepped up as part of the freedom of association and collective bargaining campaign, and there were plans for training to be provided with the textile and maquila (export-processing) sector, with support from the Office of the Representative of the ILO Director-General. The recent entry into force of the amendments to the Labour Code had strengthened the general labour inspectorate, granting it powers to impose penalties, and to ensure greater transparency in its action, an Ethics and Transparency Unit had been established, to provide the population with a high quality and efficient service. She reiterated the Government’s commitment to making firm progress which, when recognized, would mean that the case of Guatemala could be closed by the Governing Body when it meets in November 2017. In conclusion, she expressed the concern of her Government at the simultaneous use of different supervisory mechanisms to examine the same allegations against a country, concerning which a complaint was before the Governing Body. She considered that this was a duplication of supervisory mechanisms, which weakened the operation and credibility of the ILO’s supervisory bodies.

A magistrate of the Constitutional Court noted that the Constitutional Court operated independently and permanently, and that its primary task was the defence of the human rights guaranteed and protected by the Constitution and international treaties, and which consequently formed part of the “Constitutional Block”. The Court had observed international standards in the field of labour law when handing down judgments and safeguarding the rights of workers. In 2016, out of 147 decisions issued in amparo (legal protection of constitutional rights) proceedings concerning labour rights, 109 decisions had been in favour of the workers. With regard to the right to organize, she emphasized that many decisions had been handed down guaranteeing that during the period of the establishment of a union employers could not, without judicial authorization, dismiss protected workers.

A magistrate of the Supreme Court of Justice referred to the existence of Courts, Sentencing and the Court of Appeal for High-Risk Proceedings where proceedings could be heard in cases of offences committed against the lives of trade unionists, thereby giving effect to the recommendation of the Committee of Experts to create special tribunals. He indicated that those tribunals had handed down three convictions in cases related to trade unionists. Moreover, in the period from March 2017 to date, three convictions, one acquittal, four persons involved in penal proceedings, two executed arrest warrants and one extinction of criminal proceedings had been registered. He expressed the commitment of the Court concerning its responsibilities related to the Roadmap and recalled that the Office of the Public Prosecutor could at any time issue a request for the Criminal Chamber of the Supreme Court of Justice to assess the circumstances and refer prosecutions to higher-risk courts.

The Deputy Minister of the Interior reaffirmed the commitment of his Ministry to continue making progress in giving effect to its obligations under the Roadmap, as demonstrated by the approval, publication and entry into force of the protocol for the implementation of immediate and preventive security measures for the protection of trade union members which was being implemented with the participation of the trade union leaders. Furthermore, a campaign had been launched to publicize the emergency helpline (1543) for the protection of trade unionists, and, with a view to strengthening the protection measures, the budget of the National Civil Police had been increased and more space had been allocated for coordination and communication with the workers, so as to ensure compliance with the requirements of the Roadmap and expedite the elucidation of acts of violence.

The Deputy President of the Labour Commission of the Congress of the Republic reiterated the commitment of legislators to promotion and compliance with labour rights, and emphasized that the commitment of the Labour Commission of the Congress of the Republic, as set out in the Roadmap, had been demonstrated by the adoption of Decree No. 7-2017, which granted the power to impose sanctions to the general labour inspectorate. With respect to Bill No. 5199 concerning freedom of association and the right to strike, a specific date had been set for receiving the agreements of the workers and employers with a view to their submission of a proposal agreed by consensus, after eight months of consultations and three requested extensions. In conclusion, he said that social dialogue would continue to be promoted in the various sectors with a view to developing and reforming new labour legislation to bring it into conformity with international Conventions with a view to the integrated development of the country.

The Worker members considered that the Government had consistently failed to take action in response to the serious observations and recommendations of the ILO supervisory mechanisms. The current situation was not substantially different from that of 2012, which had motivated the complaint submitted under article 26 of the ILO Constitution concerning non-observance of the Convention. Since then, 28 additional trade unionists had been murdered and the environment of almost complete impunity had continued unabated. The question of violence and impunity against trade unionists in Guatemala had been examined many times by the Committee and the inaction by the Government called for continued examination, independent of the process currently taking place in the Governing Body. The Committee of Experts had noted “with deep concern the persistent allegations of acts of anti-union violence” and had expressed “its particular concern at the lack of progress in the investigations of murders in which evidence had already been found of a possible anti-union motive”. Of the 70 cases of murder brought before the Committee on Freedom of Association, only 11 had led to convictions to date. Even so, the Office of the Public Prosecutor and the courts had insisted that the motives for the violent murders subject to these eleven convictions had not been based on the victims’ trade union activity. Current and past administrations in Guatemala had never seemed to find in any case a relationship between union activities and the motives of the assassinations. The Office of the United Nations High Commissioner for Human Rights and the CICIG had also noted with deep concern the lack of progress in the investigation of such cases. Furthermore, in terms of the investigation of those cases, the Government was still falling short of performing actions as basic as collecting testimony from relatives, witnesses or ballistic analysis. The Government had also failed to protect trade unionists who were being harassed and threatened for undertaking their union activities. The Worker members regretted that the protocol for the implementation of immediate and preventive security measures for trade union members, which had recently been put in place by the Government, would be nothing more than a commitment of good intentions if there was no action on the ground. There was a need to see urgent action to implement the protocol and more funds had to be allocated for this purpose, as had also been stressed by the Committee of Experts. Recent legislation had finally been passed restoring the capacity of the labour inspectorate to impose sanctions in case of the violation of trade union rights. This positive outcome had only been reached due to bipartite agreement between the most representative employers’ and workers’ organizations, which proved that social dialogue was possible in Guatemala and was the only way forward to address the immense challenges facing the country. Yet, the Government still failed to understand the importance of including social partners in decision making. Recently, a Bill had been introduced in Congress seeking to bring the legislation into conformity with the Convention without proper consultation with the trade unions. The unions could therefore not accept the Bill, especially as it contradicted a number of clear recommendations by the Committee of Experts. In particular, the Bill sought to amend section 390(2) of the Penal Code in a way that would retain the risk of imposing penal sanctions on workers carrying out a peaceful strike. The Government had had an important chance to show its commitment to the Roadmap when the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining was set up. Unfortunately, that mechanism had become a wasted opportunity due to the lack of political will. Very low resources had been allocated to that initiative. Moreover, the Committee of Experts had noted that there was no complementarity between judicial mechanisms for the protection of freedom of association. The Office of the Public Prosecutor had also admitted that it had received no fewer than 1,950 complaints for failure to comply with court reinstatement orders for workers dismissed as retaliation for forming unions. Impunity was such that employers in the private and public sectors simply ignored court orders. The Government had not provided any details on the penalties imposed on the numerous employers who were infringing the law. The Government had also increased the obstacles for union registration or the renewal of the credentials of existing trade union leaders. The Government had even failed to launch an awareness-raising campaign on freedom of association, as agreed in the Roadmap. A mass media campaign would be particularly useful in the maquila sector, where there had been several documented cases of violations of freedom of association and the impossibility to form trade unions. The Government had even used appearances in the media to attack the right to freedom of association and collective agreements in the public sector. The Worker members would continue to monitor closely compliance of the Roadmap. The issues raised had been before the ILO supervisory system for over 20 years. It was their firm hope that the issues related to impunity, legislative changes and union registration would be resolved. Finally, they acknowledged the positive role played by the Special Representative of the ILO Director-General in Guatemala.

The Employer members recalled that this subject had been examined by the Committee on Freedom of Association in Case No. 2609 and by the Governing Body through its follow-up of a complaint made under article 26 of the ILO Constitution. They also recalled that the case related to: (i) trade union rights and civil liberties; (ii) legislative issues; (iii) the registration of trade unions; (iv) conflict resolution on freedom of association; (v) the awareness-raising campaign for freedom of association; and (vi) the maquila sector. They emphasized that the written information submitted by the Government contained detailed and updated elements on these subjects. Nearly all of the cases of anti-union violence reported were very old, and that under these conditions it was very difficult to carry out investigations. They emphasized that the institutions of State were nevertheless operational. The State was making its best efforts and results were being achieved. In particular, the fact that representatives of all the branches of the State were present in the Committee was a demonstration of their commitment. It was important to ensure the continued operation of the Tripartite Committee on International Labour Affairs and to continue undertaking awareness campaigns and information dissemination. They expressed interest in being provided with further details on the refusal by the workers of a proposal by the Government to reform the procedure for trade union registration. They also noted with great interest the indication by the Government concerning the requirements for the establishment of branch unions and the changes in relation to foreign nationality to stand for office on the executive bodies of trade unions. With reference to the comments of the Committee of Experts in relation to strikes, they reiterated that they did not consider that the right to strike was regulated by the Convention and that there was therefore no basis for its discussion by the Committee, that the Committee’s conclusions on the case should not therefore refer to the right to strike and that the Government was not required to follow the recommendations of the Committee of Experts on that specific subject. They emphasized that there was full freedom at the national level, with regard to strikes, to establish legislation that was adapted to the national circumstances and emphasized in that respect the progress that could be made at the initiative of the Congress, and particularly through the will of the tripartite partners. They referred to the comments of the Committee of Experts on the possible penal sanctions established in section 390(2) of the Penal Code, and raised the question of whether acts of sabotage, damage or destruction of private property, enterprises or institutions which affected their production and services could be considered peaceful. In view of the high number of complaints to the ILO supervisory bodies relating to freedom of association, they expressed interest in the further use of dispute mediation and resolution machinery, although in each case it was for the State itself to determine the manner in which such machinery should be designed and developed. They emphasized that the maquila sector was the principal source of exports and of formal and direct employment in the country, and that compliance in the sector with the legislation and fundamental workers’ rights was being promoted by the most representative organization of employers, the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF). A code of practice based on fundamental labour Conventions, which certified over 300 enterprises and governed over 250,000 workers, and independent audit systems were being implemented, many of which were international. The Employer members added that the fact that textile enterprises were covered by an average of five audits a year for each of their clients, in order to be certified and to continue renewing commercial contracts, should lead the Committee to consider that this aspect of the case had been resolved definitively. In conclusion, they emphasized the commitment of employers to continue the awareness-raising campaign on freedom of association and to continue a strengthening of the various public and private institutions in the country.

The Worker member of Guatemala deplored the constant and serious violations of freedom of association that Guatemala had been witnessing for years, which not only profoundly affected labour relations, but also called into question the situation with regard to democracy and human rights in the country. The figures brooked no discussion: 84 trade unionists had been murdered in recent years, counting only the cases currently being dealt with by the Special Investigation Unit of the Office of the Public Prosecutor, and 251 complaints of serious attacks against trade union leaders and labour rights defenders had been made in 2015 and 2016. At present there were thousands of reinstatement orders in respect of workers who had been dismissed for having tried to organize into unions. According to court records, in the majority of cases such reinstatement orders were not complied with and, in complete violation and disregard of the law, in some cases workers were reinstated only to be dismissed again. There were many ministerial obstacles to registering new trade unions and new executive bodies, to complying with administrative procedures for trade unions and for the approval of the few collective agreements that were actually concluded. The President of the Republic issued an annual circular essentially prohibiting collective bargaining in the public sector by limiting wage adjustments on the pretext of spending restrictions and austerity. Many workers who had applied for the approval of collective agreements more than 15 months previously had still received no answer from the authorities of the Ministry of Labour and Social Welfare. Indeed, there had been many orders to remove clauses from collective agreements from which workers had benefited for many years. A fierce anti-union campaign was under way, driven by employers and the State, with the aim of having collective agreements declared harmful for the country and criminalizing the trade union leadership. In so doing, the campaign aimed to portray trade union organizations as responsible for the disorder, corruption and economic crisis affecting most people in Guatemala. As such, it was not surprising that the annual report of the International Trade Union Confederation (ITUC) named Guatemala as one of the ten worst countries in the world in terms of violations of the right to freedom of association. Workers faced the worst forms of violence, including intimidation, threats, persecution, kidnapping, physical violence and even murder, simply for trying to organize. Worse still, the situation was aggravated by the prevailing impunity of those responsible for such appalling acts, as was clear from the report submitted by the Office of the Public Prosecutor in March 2017 on the state of the investigations into the murders of 84 trade unionists. The document did no more than corroborate the lack of technical capacity and political will to investigate the murders of fellow trade unionists. The vast majority of cases had not seen any progress, and when new ones were reported, they generally resulted in acquittals or investigations being closed and the union link being ignored. It was a matter of deep regret that, four years after the Roadmap had been adopted which had had a one-year time frame for its completion, progress was scarce and insubstantial. There had been no significant change in the situation with respect to freedom of association and collective bargaining. Committees, working groups and similar forums had been formed but, despite the best efforts of trade unionists, they did not lead to substantive changes. The legislative amendments recommended by the Committee of Experts were still pending. The Government’s legislative proposal not only failed to follow the recommendations but also, in some respects, involved retrograde steps in relation to freedom of association. A reform of the Labour Code had been adopted with regard to the powers of labour inspectors to impose penalties on those who failed to comply with labour legislation, but at the last moment, members of Parliament had included a provision that prevented inspectors from entering a large proportion of the country’s workplaces. Lastly, having reiterated the union movement’s commitment to do everything in their power to ensure that the Roadmap was implemented and, in general, that the rights of workers and trade union organizations were upheld, he requested the Committee to urge the Government to take specific action to guarantee the rights enshrined in the Convention and emphasized the need to establish a Commission of Inquiry.

The Employer member of Guatemala welcomed the information supplied by the Government, and the fact that the Government delegation was composed of representatives of all the branches of the State and the highest level civil servants responsible for the subject. That was testimony to the commitment of the Government to the ILO and its supervisory mechanisms to resolve the complaints that had been made for years. That commitment also needed to be made by the social partners. Employers had been doing so for many years, participating in social dialogue forums with the aim of giving effect to the observations of the Committee of Experts. With regard to trade union rights and civil liberties, he noted the information supplied by the Government describing a series of measures to provide trade union leaders with protection and resolve cases of violence against them. The vast majority of those cases dated back many years, which made it much more difficult to obtain final court rulings. Nevertheless, results had been achieved which showed that there was no anti-union persecution in Guatemala. There had been isolated occurrences of that type in the recent past, which were part of the climate of serious violence in the country. He thought that there was a lack of balance in the comments of the Committee of Experts, which had noted “the lack of progress in the investigations of murders in which evidence [had] already been found of possible anti-union motive”. Moreover, with regard to the legislative issues, the Committee of Experts had been, for a number of years, asking the Government for decades to engage in tripartite dialogue on various legal provisions with a view to aligning them with the Convention. With the support of the Special Representative of the ILO Director-General in Guatemala, the workers and employers had discussed this set of reforms, which affected the Labour Code, the Penal Code and the Act governing the rights of state workers. Important agreements had been reached with regard to the Penal Code and it was hoped that more agreements would be concluded in the near future. Decree No. 7-2017, which had also resulted from social dialogue and the support of the Representative of the Director-General, had resolved the long-standing issue of the authority of labour inspectors to impose penalties. Even though the Congress of the Republic had not fully taken into account the content of the agreements reached through social dialogue, a commitment had again been made by employers and workers to insist that Congress adopt the reforms that had been left aside. The country had made unprecedented progress on those issues. With regard to the resolution of disputes relating to freedom of association and collective bargaining, he reiterated the firm commitment of the employers to participate in bipartite or tripartite dispute settlement forums, particularly the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining. He was aware that the results so far had not been totally satisfactory and perhaps there had not been the greatest willingness on the part of all parties. It was necessary, in a tripartite manner, to evaluate the working methods of that Committee to make its work more efficient, in accordance with the recommendation of the Committee of Experts. With regard to the maquila sector, he indicated that since 1997 there had been a code of conduct in the textile industry which was based on the fundamental labour Conventions, under which over 300 companies had received certification for compliance with standards and over 250,000 workers had benefited to date, with compliance being verified by independent auditing companies. Moreover, companies in the sector were constantly monitored and inspected by inspectors from the Ministry of Labour and Social Welfare, and also by labour auditors for the international brands with which they had commercial relations. Companies in the garment and textile industry received an average of five labour audits a year from each of their clients, with a view to obtaining certification and thereby securing contracts. As a result, workers’ rights, particularly freedom of association, were fully guaranteed, and workers could choose freely whether or not to establish trade unions. Lastly, he expressed concern that the situation under discussion was being examined by two ILO supervisory mechanisms, which was not conducive to transparency and could undermine the efforts of Guatemala to fulfil its obligations towards the ILO.

The Government member of Panama speaking on behalf of the group of Latin American and Caribbean countries (GRULAC), acknowledged the Government’s political will to foster a culture of compliance and respect for labour rights, including freedom of association, to promote the creation of decent work and social dialogue in the country in coordination with the ILO. He encouraged the Government to continue its efforts to accelerate progress in the implementation of the Roadmap and to redouble its efforts to investigate crimes against trade union leaders and thereby provide the necessary guarantees to protect freedom of association. During the March 2017 session of the ILO Governing Body, GRULAC had noted the actions taken by the new Government to move forward in implementing the Roadmap and had supported the decision adopted by the Governing Body. GRULAC urged all of the partners to continue working together in a constructive manner on the implementation of the measures adopted and other future measures to be agreed between the tripartite partners, reinforcing and participating actively in social dialogue with a view to achieving durable solutions and the full application of the Convention in the country. GRULAC reiterated its commitment to fundamental rights at work, especially freedom of association and collective bargaining. Recognizing the technical assistance provided by the Special Representative of the ILO Director-General in Guatemala and its importance for the full implementation of the Roadmap, he requested the Office to continue providing that support. Finally, GRULAC reiterated its concern regarding the simultaneous use of supervisory mechanisms to deal with the same allegations regarding a country that was already being examined by the Governing Body. The unnecessary duplication of mechanisms could weaken the functioning of the ILO supervisory system. Guatemala had demonstrated political will to improve its industrial relations system and create a better future for the exercise of all fundamental labour rights. He considered that strengthening social dialogue and mutual trust between the social partners and the Government, with support from the ILO and international employers’ and workers’ organizations, was a very important part of continuing to assist a country that was cooperating with the ILO’s supervisory mechanisms. He emphasized that the progress achieved by the Government should be assessed objectively, in the hope that the case could be finalized soon.

The Government member of Malta speaking on behalf of the European Union (EU) as well as Albania, Bosnia and Herzegovina and Montenegro, recalled the commitment made by Guatemala under the trade pillar of the EU-Central America Association Agreement to effectively implement the fundamental ILO Conventions. The case referred to very serious allegations on freedom of association that were being closely examined by the Governing Body under the procedure under article 26 of the ILO Constitution. He reiterated the need to avoid in so far as possible the duplication of procedures and efforts. For the sake of consistency, he recalled the views expressed at the Governing Body in March 2017: (1) he acknowledged the commitment of the Government to ensure respect for the rule of law in the country and its increased engagement with the ILO, as well as the advances made regarding social dialogue through the recent adoption of a new law on the labour inspectorate sanction powers; (2) he reiterated the call for a new law on freedom of association and the right to organize to be adopted before the meeting of the Governing Body in November 2017, in full conformity with the Convention and after thorough consultations with the social partners; and (3) he expected rapid, concrete and substantial progress on the Roadmap, including investigations of the murders of union officials, the strengthening of prevention and protection mechanisms, the implementation of reinstatement orders and the development of the awareness campaign.

An observer representing Public Services International (PSI) highlighted that violations of freedom of association in Guatemala were not limited to the activities of union leaders, but also included serious State interference in the autonomy of trade unions, in violation of the Convention. This interference had peaked with challenges in the courts to collective agreements freely signed by trade unions and the State in its capacity as employer. Union leaders had faced criminal charges for participating in these negotiations. The public smear and stigmatization campaign against trade unionism that was being expanded must cease with immediate effect. The State should carry out its role of promoting and developing freedom of association. He considered that the State had, in that respect, put itself at the service of the business sector that were developing the legal strategy for the Office of the Public Prosecutor. The ILO needed to call on the Government of Guatemala to immediately cease its acts of interference and persecution of trade union leaders. The violation of freedom of association had reached such a level that all leaders were being taken to court, with judicial rulings that protected ministries and institutions so that trade union action could be criminalized and the agreements concluded ignored. Moreover, agreements in the public sector had been subject to delays in their approval by the Ministry of Labour and Social Welfare. He also denounced the dismissal of trade union leaders in the public sector, with the aim of intimidating workers and the dissolution of trade unions. A Commission of Inquiry was urgently needed before all trade union leaders in Guatemala were convicted for exercising their rights, or worse still murdered with total impunity. The problems stemmed from the culture of hate that the anti-union media had spread against social and trade union action. He recalled that dialogue was the means of resolving such matters.

The Government member of Switzerland indicated that her country supported the statement made on behalf of the EU. Strong and lasting labour relations, based on social dialogue and trust, were key for sustainable development. Switzerland supported the recommendations of the Committee of Experts and the conclusions of the Governing Body. She called on the Government and the social partners to implement the whole Roadmap without delay. The persistence of violence and harassment against trade unionists and impunity were a matter of concern. She hoped that the ongoing prosecutions would be brought to a successful conclusion with the imposition of effective sanctions, and that the Government would adopt legislation in accordance with the Convention as soon as possible. Lastly, she encouraged the Government to continue its efforts to promote social dialogue in the necessary atmosphere of trust. In this regard, she welcomed the cooperation of the ILO.

The Worker member of Spain speaking on behalf of the General Union of Workers (UGT), the Trade Union Confederation of Workers’ Commissions (CCOO) and the trade unions of Belgium, France, Germany, Italy, Norway and Sweden, expressed solidarity with all trade unionists, and citizens in general, who were risking their physical integrity, and even their lives, to protect human rights and fundamental labour rights, particularly in Guatemala, where at least 84 trade unionists had been victims of union repression and its impunity in the country. He indicated that the Committee of Experts, the Committee on Freedom of Association and the Conference Committee had all examined complaints of serious breaches of the Convention in Guatemala and had urged the Government to adopt the necessary measures in law and practice in order to remedy those violations. Referring to the requests made by the Committee of Experts in its observation, he indicated that the Government’s response had been inadequate and that it was far from resolving the situation of serious failure to comply with both Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). In that regard, he regretted that trade unionists in Guatemala continued to suffer from physical attacks, threats and murder, and that there was still no judicial protection for the effective investigation of these crimes. He said that the Government continued to obstruct the registration of trade unions, the enforcement of judicial decisions for anti-trade union dismissal and the exercise of collective bargaining. The Government was also attempting to carry out a reform of the Penal Code reform to criminalize the peaceful exercise of the right to strike. In that context, he called on the Committee to invite the Governing Body to appoint a Commission of Inquiry to examine the non-application of the Convention by the Government of Guatemala.

The Government member of Honduras recognized the continued political will of the Government of Guatemala to promote compliance of and respect for labour rights, including the right to freedom of association. He encouraged the Government to redouble its efforts to shed light on the crimes committed against trade union leaders and to provide the necessary guarantees to protect freedom of association. He recalled the importance of tripartite dialogue and requested all parties to continue working together constructively with a view to finding lasting solutions and achieving the full application of the Convention in the country.

The Worker member of the United States, speaking also on behalf of the Canadian Labour Congress (CLC) and the Central Workers Union Confederation of Brazil (CUT), made reference to the increased citation of ILO standards in trade agreements. Governments often include commitments to honour the ILO Conventions that this Committee supervises. We must point out that the increasing citation of ILO standards in such agreements is accompanied by the complete failure of our Governments to use these standards to protect freedom of association in the context of international trade. Guatemala and the United States are two such Governments, among many. With respect to the Central America and Dominican Republic Free Trade Agreement (CAFTA–DR), which required the parties to protect freedom of association, the Government of Guatemala had persistently failed to comply with the Convention, the country continued to receive trade benefits. The CAFTA–DR arbitration panel had heard arguments touching almost entirely on the application of the Convention by Guatemala. The results of the dispute settlement were not yet public, more than nine years since the submission of the workers’ petition. The Conference Committee had also expressed serious concerns in relation to the present case, which was also examined in the Committee on Freedom of Association and under the procedure under article 26 of the ILO Constitution. Since 2007, workers filing complaints had documented violations of Convention No. 87 and updated cases annually showing that the Government had failed to act over the last ten years despite proof that union leaders were offered bribes to quit their jobs and to convince workers not to join unions; and that workers were fired for joining unions or not disbanding unions. The Government did not investigate, prosecute, and punish employers who violated freedom of association. New violations of cases of dismissal of union leaders and members continued to this day. In 2015, an employer with 1,200 workers had refused to bargain with the union chosen freely by over 66 per cent of its workforce and had signed an agreement with another group representing fewer than 3 per cent of workers. One more current example, among many: starting in July 2016 with the formation of a union in the food sector, the employer had fired 150 union leaders and members. There was a judicial order for the employer, Grupo Bimbo, to reinstate the workers but as in over 2,200 such orders, there had been neither compliance nor enforcement.

The Worker member of Colombia said that in Guatemala the murders of trade union leaders and members were not effectively penalized or prevented. Impunity prevailed. In 2016, the Committee had called on the Government to investigate all acts of violence against trade union leaders and members. However, there had been no convictions in the majority of cases, or they had been attributed to causes other than trade unionism. In 2016, the Committee had also asked the Government to draw up draft legislation to bring the law into conformity with the recommendations of the ILO supervisory bodies. However, although the Government had reiterated its commitment to adjusting its legislation, it repeatedly disregarded its responsibilities in that respect, with obstacles to freedom of association and provisions inconsistent with the Convention remaining in the national legislation. After reiterating the solidarity of Colombian workers with those of Guatemala, he suggested that the Committee should call on the Government to provide improved protection for trade union leaders and take the necessary measures to investigate the crimes committed against trade unionists, clarify the true motives and hand out exemplary punishments to the perpetrators and instigators.

The Government member of the United States congratulated the Government on the enactment of legislation that restored the authority to impose sanctions to the Ministry of Labour and Social Welfare. That was an important step in addressing serious concerns about the effectiveness of labour inspections. The next step would be to ensure the effective implementation of the legislation. He urged the Government to allocate additional resources to the labour inspectorate to ensure sufficient and effective inspections throughout the country. He also urged the Ministry to promptly enact complementary inspection protocols to provide specific guidance to investigators in the investigation of complaints related to freedom of association and collective bargaining and ensure that violations were remedied. He further urged the Government to improve compliance with labour court orders. Several other freedom of association issues of concern had been well-documented in the conclusions of the ILO supervisory bodies. He hoped that ? tripartite Bill, developed in consultation with the ILO and that took into account all of the Committee’s recommendations, would soon be enacted and effectively implemented. He also hoped that the Government, in consultation with the trade unions and the ILO, would address the issue of the delays in the registration of labour unions. Anti-union discrimination persisted, especially in the maquila sector, where no specific measures to address trade union rights existed. He urged the Ministry of Labour and Social Welfare to work closely with the Ministry of Economy, the tax authority and the Social Security Institute to develop and apply strategies to protect freedom of association and collective bargaining rights in that sector, including joint inspections and the implementation of existing laws that required the removal of Government benefits in cases of non-compliance. Finally, he remained concerned at the low rates of convictions in cases of murdered trade unionists. He called for the effective application of existing instruments intended to improve criminal investigations, and increased information sharing between unions and investigative bodies.

An observer representing IndustriALL Global Union noted with concern the incapacity of the Government to give effect to the Convention and to prevent the increase in anti-trade union violence in the country. According to the recent ITUC Global Rights Index, Guatemala was one of the ten worst countries for workers, in which trade union members were harassed, threatened, subjected to physical violence and persecution, and were even murdered, simply because they wished to exercise their right to freedom of association. An affiliated organization, the Trade Union Federation of Food, Agricultural and Allied Workers (FESTRAS), had reported violations committed by enterprises against two trade unions, to which the Government had failed to respond. A trade union from the textile sector, which had been legally established, had met with resistance when it attempted to become fully operational and exercise its right to engage in collective bargaining. Its members and leaders were harassed on a daily basis, with no intervention by the Ministry of Labour and Social Welfare. Another trade union, which had been established for over five years, continued to experience the dismissal of its leaders and incidents of harassment. Despite its legal victories supporting its right to exist, the enterprise continued to refuse to negotiate a collective agreement with the union. He called on the Committee to make a clear and unambiguous recommendation to the Government to take the necessary measures to ensure that enterprises operating in the country fully complied with the Conventions ratified, and respected the rights of all workers.

The Employer member of Chile emphasized that, as in 2016, the Committee had examined the Government’s compliance with the Convention, and that the conclusions of the Committee, and the latest comments of the Committee of Experts, showed that this was a case of clear progress. He drew attention to the information provided by the Government on Decree No. 7-2017, which established an inspection procedure aimed at punishing labour violations and promoting a culture of compliance with labour rights and duties. The Committee of Experts had observed with interest the content of Bill No. 5199, submitted by the Government to the Congress of the Republic on 27 October 2016, recognizing that the text incorporated many of that Committee’s previous observations. With reference to the Committee of Experts’ comments on serious acts of violence against trade union leaders and members, he highlighted that in 2016, in the Committee, the CACIF had stated that, without downplaying the violence reported against trade union leaders, a general climate of violence affected the entire country, and it was therefore necessary to improve without delay the speed and efficiency with which justice was applied. That was particularly relevant because the official information provided by the Office of the Public Prosecutor that the courts in their rulings dismissed trade union activities and the defence of the labour rights of the victims as the motives for their violent deaths. For Guatemalan employers, it was paramount for the Government to guarantee social peace, and protection and respect for the fundamental rights of all citizens, and particularly the right to life. He nonetheless noted with concern that the Committee of Experts was urging the Government to create special courts to deal more rapidly with crimes and offences committed against members of the trade union movement. If that recommendation were adopted, it could result in special and differentiated treatment for a specific group of the population, although the official figures did not show that the crimes and offences committed against trade unionists were due to their activities. The situation was also very delicate as the Committee of Experts was stretching its mandate to the extreme by proposing under the Convention the creation of specialized courts with criminal jurisdiction. In conclusion, he hoped that the Government would pursue its efforts to speed up the application of justice in an appropriate and efficient manner, to protect all citizens, irrespective of their activities, and to ensure due respect for freedom of association and the protection of the right to organize.

A Government member of Panama endorsed the statement made by GRULAC, and welcomed the written information submitted by the Government. He highlighted the action taken by the Government and the authorities of the three branches of the State to achieve the progress required by the social partners in the country. He urged the Government to take further steps to protect freedom of association, which was synonymous with industrial peace.

The Worker member of Burkina Faso underlined that violations of freedom of association in Guatemala had resulted in the deaths of dozens of persons, and emphasized that all human rights violations were to be condemned, regardless of the country in which they occurred. Tribute should be paid to all of those who lost their lives every day in defence of freedom, integrity and human dignity. Such remarkable individuals were found not only in employers’ and workers’ organizations, but also in governments. While inviting the Government to comply strictly with international labour standards, he called on the Committee members to ensure that the ILO demonstrated credibility in its approach to addressing these issues, and backed up words with action.

The Employer member of Honduras welcomed the information provided by the Government in response to requests which had been made by the ILO over a period of many years. He expressed appreciation for the information regarding the Labour Code reform proposals which would strengthen freedom of association and would undoubtedly be a tool for social peace. He supported the comments made by the CACIF to the Committee of Experts. He highlighted the work carried out by the Special Representative of the ILO Director-General in Guatemala, in accordance with the Memorandum of Understanding signed in 2013 and the Roadmap. He noted that criminal investigations were now carried out with more speed and determination and observed that the information provided by the CICIG revealed the absence of a climate of anti-trade union violence. He concluded that the ILO should note the significant progress made through the strengthening of institutions and social dialogue.

The Government representative emphasized that, with regard to the strengthening of the protection measures for trade unionists, the budget had been increased by GTQ400 million, mechanisms for coordination and communication with workers had been reinforced and a process had been commenced for the strengthening of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining. She indicated that the inclusion of former prosecutors from the Office of the Public Prosecutor into the team of the Ministry of the Interior and the use of new investigation technologies and tools had made it possible to ensure greater flexibility in the investigation of acts of violence. She emphasized that in 2016 and 2017 more trade unions had been registered than in previous years, and that a forum for dialogue had been established, in which it had been agreed to address a series of subjects, including the reform of the procedure for trade union registration, which had been proposed by the trade unions. She also recalled that there were regulations in Guatemala for the registration of trade unions and specific requirements that needed to be fulfilled so that the Ministry of Labour and Social Welfare could grant recognition. She welcomed the fact that the Committee of Experts had noted with interest Bill No. 5199, which had been submitted to the Congress of the Republic on 27 October 2016, as it took on board most of that Committee’s earlier observations. She expressed support for social dialogue and expressed her full willingness to participate in any discussions that could be requested by the constituents, taking into consideration the fact that the Congress of the Republic had set specific dates to receive the agreements, after eight months had elapsed. During that period Congress had granted several extensions in view of the additional time requested by employers and workers, without counting more than ten months that had been granted by the Ministry of Labour and Social Welfare in 2016 for views to be provided as, with much regret, a communication written and signed by workers had been received indicating that they would not participate in the process of the formulation of the Bill. She nevertheless expressed confidence that the Bill would be approved as soon as possible, noting that it contained the elements pointed out by the Committee of Experts. With reference to collective agreements in the public sector, she emphasized that the administration and control of the quality of expenditure were a priority for the Government which, rather than seeking to limit collective bargaining, was endeavouring to ensure that public resources originating from the taxation of citizens were taken into consideration prior to negotiations, based on rational and transparent budgetary measures. She reiterated her concern and consternation at the loss of human lives as a result of the violence in the country, including those of trade unionists, and indicated that specific cases had been investigated in which the victims had been trade unionists and it had been scientifically proven that there was no trade union motive. In conclusion, she reiterated the readiness, will and commitment of the Government and called for further transparent, honest and truthful dialogue.

The Employer members thanked the Government for its detailed explanations and welcomed the action it had been taking to make progress on the issues discussed. They referred to the report submitted in March 2017 by the Special Representative of the ILO Director-General in Guatemala to the Governing Body, highlighting the manner in which the social partners were being involved. With regard to the nine indicators identified as the basis for follow-up to the Roadmap, the Employer members recalled that the Tripartite Committee on International Labour Affairs was working to identify problems and seek solutions in conjunction with the social partners, and expressed the hope that such reviews would continue to be conducted regularly. They also drew attention to the fact that in March 2017, the President of the Republic had held a meeting with workers and employers with the aim of drawing up an action plan to continue the process of the implementing the Roadmap, and they expressed the hope that the President would remain involved in the process. The Labour Commission of the Congress had provided support to members of Parliament to raise their awareness of fundamental principles and rights at work. Awareness-raising campaigns on freedom of association had also been carried out with employers, and had been extended to cover various sectors, with the aim of achieving the objectives of Agenda 2030 for Sustainable Development. Three meetings had also been held with journalists, columnists and opinion makers. With regard to judicial bodies, there had been progress in developing rules of procedure for labour and social welfare courts and regulations on the enforcement of sentences. It was to be hoped that, with the Supreme Court of Justice, progress could be made on a code of labour procedure. They also highlighted the bipartite agreements concluded by the social partners and emphasized the importance of the Government accepting and implementing those agreements to deepen understanding between the social partners. Some actions should be taken urgently, such as strengthening the investigations into clarification of the facts and prosecutions of the murders of trade union activists and leaders, a significant increase in the percentage of reinstatement orders, trade union registrations, the more effective use of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining and, lastly, the expansion of the mass awareness-raising campaign. In March 2017, the Governing Body had called for further engagement in constructive social dialogue to achieve the full implementation of the Roadmap. That course of action should be endorsed by the Conference Committee, and should be included in its conclusions. The conclusions should also include support for dialogue between the social partners at both the national and international levels and the adoption of the draft legislation that had been developed at the earliest possible juncture. With regard to freedom of association and civil liberties, the Employer members considered that there was a need for more in-depth consideration of the causes of violence that affected trade union members, including by the Committee of Experts itself, because it seemed that there were no trade union motives. Concerning legislation they recalled that issues involving the right to strike should not be included in the Committee’s conclusions, and that the Government was under no obligation to act on them. Regarding trade union registration, they said that the trade unions themselves needed to take responsibility and make constructive commitments in the dialogue with the Government to make progress with regard to registration, as the workers had rejected specific proposals from the Government to improve the registration system. It was hoped that the workers would support the development of a joint proposal for improvements in the registration system in Guatemala. With regard to the dispute settlement mechanism relating to freedom of association, they considered that it was for the Government to determine the modalities. They also considered that it was for the Government to decide how the campaign to strengthen freedom of association and collective bargaining should be implemented. Concerning the maquila sector, they considered that there were no specific indications of non-observance of the Convention, and that that issue should be regarded as settled. Indeed, much had been done in the context of the codes of conduct in the sector. Moreover, specific sectoral action did not come within the scope of the Convention. The number of trade unions existing in a sector could not be the sole indicator, since there were both positive and negative aspects to freedom of association, and agreement was needed in that sector. Lastly, they reiterated that the case should be dealt with in the Committee on Freedom of Association as part of Case No. 2609 and by the Governing Body.

The Worker members noted with concern that, despite some isolated achievements, not enough progress had been observed in Guatemala. The Government had failed to implement the conclusions adopted in 2016 by the Committee, including those related to the need to investigate violence motivated by trade union activities of the victims and to punish perpetrators. It was clear that not enough financial and human resources had been allocated to the Special Investigation Unit for Crimes against Trade Unionists of the Office of the Public Prosecutor. Without resources, it was unlikely that the protocol for the implementation of immediate and preventive security measures for trade union members could be properly implemented. In terms of legislative changes, the latest Bill submitted to Congress to bring the legislation into conformity with the Convention did not fully resolve the issues raised by the Committee of Experts. The Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining had not been able to operate fully. The Ministry of Labour and Social Welfare had introduced new obstacles for the registration of trade unions. The levels of non-compliance with court orders in cases of anti-union dismissal were unacceptable. There was no effort so far to reach out to broader Guatemalan society through the mass media. On the contrary, the Government had attacked a number of collective bargaining agreements in the public sector. Public sector unions were being stigmatized by the Government as if they were working against the national interest. The Worker members urged the Government to: (1) continue to provide prompt and effective protection for all trade union officers and members who were at risk and redouble its efforts to combat impunity, by ensuring that the Special Investigation Unit for Crimes against Trade Unionists of the Office of the Public Prosecutor was provided with appropriate financial and human resources; (2) through ILO assistance and consultation with the social partners, review the Bill submitted to Congress to bring the legislation into conformity with the Convention; (3) undertake, in consultation with the social partners, an evaluation of the terms of reference and operation of the Committee for the Settlement of Disputes and include in that process an examination of the complementarity between that Committee and the judicial mechanisms for the protection of freedom of association in the country, together with an analysis of their effectiveness; (4) eliminate the various legislative obstacles to the freedom to establish trade unions and, in consultation with social partners, and with the support of the Special Representative of the Director-General in Guatemala, revise the procedure for processing applications for registration; and (5) disseminate the awareness-raising campaign on freedom of association in the mass media and cease immediately to stigmatize and denigrate existing collective agreements in the public sector through the media.

Conclusions

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

The Committee noted the persistent allegations of acts of anti-union violence, including physical aggression and murders, and the insufficient progress in combating impunity.

Taking into account the discussion, the Committee called upon the Government of Guatemala to:

- continue to investigate, with the involvement of the Public Prosecutor’s Office, all acts of violence against trade union leaders and members, with a view to identifying and understanding the root causes of violence, understanding whether trade union activities was a motive, determining responsibilities and punishing the perpetrators;

- continue to strengthen the operation of the Conflict Resolution Committee, including in relation to the complementarity between the Conflict Resolution Committee and the judicial mechanisms for the protection of freedom of association;

- eliminate the various legislative obstacles to the free establishment of trade union organizations and, in consultation with the social partners and with the support of the Special Representative of the Director-General, review the handling of registration applications;

- continue to provide rapid and effective protection to all trade union leaders and members who are under threat so as to ensure that protected individuals do not personally have to bear any costs arising from those schemes;

- ensure the effective operation of the Investigation Unit for Crimes against Trade Unionists of the Office of the Public Prosecutor by allocating the necessary resources;

- increase the visibility of the awareness-raising campaign on freedom of association in the mass media and ensure that there is no stigmatization whatsoever against collective agreements existing in the public sector;

- continue taking the necessary steps to fully implement the roadmap adopted on 17 October 2013 in consultation with the social partners;

- continue to engage with the Special Representative of the Director-General in Guatemala in pursuing the implementation of the Memorandum of Understanding and the roadmap.

The Committee called upon the Government of Guatemala to report progress to the Committee of Experts before its next meeting in November 2017.

Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)



The Government provided the following written information.

Progress in compliance with the road map resulting from the complaint of non-observance of Convention No. 87, presented under article 26 of the ILO Constitution. Investigation of murders and of rulings handed down to date. The Government of Guatemala expresses its concern at these acts and, through the Special Investigation Unit for Crimes against Trade Unionists, which is part of the office of the Public Prosecutor, is continuing its investigation with a view to the conviction of the perpetrators of the crimes concerned. In March 2016, the 326th Session of the Governing Body was informed of 14 convictions. Since then there has been further progress in the investigation. The Special Unit of the office of the Public Prosecutor has made progress in its inquiries into the case of Bruno Ernesto Figueroa, who was a member of the healthcare integration system subsidiary of the National Trade Union of Health Workers of Guatemala (SNTSG) (Case No. 2609 of the Committee on Freedom of Association), as follows: (a) on 14 April 2016, formal charges were brought and the opening of proceedings was requested against four persons for the crimes of murder, attempted murder and criminal association; (b) on 16 May 2016, the Department of Guatemala Tenth Court of First Instance dealing with drug trafficking and crimes against the environment accepted the charges and criminal proceedings were opened; (c) the hearing for the start of the public trial of one additional person charged with obstruction of justice and criminal association is due to take place on 29 August 2016.

Progress relating to the cooperation agreement between the International Commission against Impunity in Guatemala (CICIG) and the Special Investigation Unit for Crimes against Trade Unionists of the Office of the Public Prosecutor. On the basis of the cooperation agreement between these two bodies, four meetings have been held to follow up the investigations and solve the crimes. Observations and recommendations were made during the meetings with regard to a number of cases, resulting in a five-year sentence for Gerardo Aníbal López (convicted) in the case concerning Marlon Dagoberto Vásquez (victim) and the termination of criminal proceedings in the case concerning Jorge Ricardo Barrera Barco (victim) relating to the death of the trade unionist Rómulo Emanuel Mejía Peña. Recently, the Ministry of Labour held several meetings with the office of the Public Prosecutor and the CICIG to follow up the former’s inquiries, and the CICIG was asked to cooperate to speed up and give priority to the investigation of these cases. The Commissioner and Public Prosecutor said that they fully supported the efforts to solve the crimes.

Compliance with General Instruction No. 1-2015 to improve the effectiveness of investigations into the murder of union officials and members. The case of Mynor Rolando Castillo Ramos. Since General Instruction No. 1-2015 came into force, the Special Investigation Unit has complied with the investigation procedures established in the Instruction, as shown by the investigation into the death of Mynor Rolando Castillo Ramos, a member of the Jalapa Municipal Workers’ Union, which occurred in 2015. The investigation, which was quickly undertaken, enabled the office of the Public Prosecutor to bring formal charges and the trial to begin. On 18 May 2016, the Department of Jalapa Court of First Instance dealing with drug trafficking and crimes against the environment accepted the charges and opened criminal proceedings against one person charged with murder and attempted murder, who had previously been under psychiatric treatment.

Risk assessments for union officials and members and adoption of protective measures. First quarter of 2016. The Ministry of the Interior reported that in the first quarter of 2016 that it received 14 complaints/requests for safety measures, in response to which the Risk Assessment Department of the Personal Protection and Security Division of the National Civil Police analysed the risks incurred and concluded that the level of risk was low. Consequently, no protective measures were granted.

Requests for the application of the preventive security mechanism according to the Protocol for the Implementation of Immediate and Preventive Security Measures for Human Rights Activists, made by the Office of the Public Prosecutor. In the first quarter of 2016, the office of the Public Prosecutor, through its Special Unit, requested the Ministry of the Interior to issue seven personal preventive security measures for trade union leaders and members. In addition, requests were made to the National Civil Police for eight perimeter security measures.

The free 1543 emergency number to report acts of violence or threats against human rights activists. The specialists working on the 24-hour emergency number coordinate immediate support through the National Civil Police and by activating the Protocol for the Implementation of Immediate and Preventive Security Measures for the victims concerned, while the risk assessment is being carried out. During the first quarter of 2016, calls to the emergency number gave rise to two complaints to the office of the Public Prosecutor, which are being investigated by the Special Investigation Unit for Crimes against Trade Unionists and the Special Investigation Unit for Crimes against Journalists.

Training on freedom of association for officers operating the 1543 emergency number. On 29 March 2016, with technical assistance from the ILO, the Ministry of Labour and Social Welfare provided training on the right to freedom of association, the right to organize and the right to collective bargaining for officers operating the 1543 emergency number of the Ministry of the Interior, advisers at the Ministry of Labour call centre and other officers of the National Civil Police. A total of 50 persons were involved in the training, which aimed to equip them with the tools to apply the necessary mechanisms to ensure the safety of individuals associated with trade unions in Guatemala.

Progress in relation to the Protocol for the Implementation of Immediate and Preventive Security Measures for trade union members, officers, activists and leaders, and labour rights activists, and on the provision of premises for their activities. On 23 February, 16 March and 17 May 2016, round table meetings attended by the institutions concerned and trade unions were held to revise the Protocol for the protection of trade unionists. On 23 February, it was agreed to wait for observations from the trade unions before continuing to draft the Protocol; these observations were sent on 1 March. The purpose of the 17 May meeting of the round table on trade union matters was to present, revise and discuss the draft Protocol of the Ministry of the Interior. At the meeting it was agreed that the trade union federations would submit their comments and observations by 24 May, with a view to reaching agreement and signing the Protocol. However, on 23 May, the Autonomous Popular Trade Union Movement and Global Unions of Guatemala sent a note stating that the Protocol had been imposed upon them, that no account had been taken of the claims of the unions, and that if these were included in the instrument, they would be in a position to study it and possibly give their approval. The Government therefore made further arrangements for the trade unions to make their comments and express their views so that the terms of the Protocol could be agreed upon. The Government therefore convened more meetings so that the trade unions could express their views and make comments and the Protocol could be agreed upon and approved. It reviewed the dialogue and the related proceedings to make it clear that it was not imposing a Protocol without its endorsement by the unions, taking into account its sustainability and implementation by the Ministry of the Interior.

Establishment of a budget item to cover the costs of National Civil Police officers assigned to personal protection duties. It is important to emphasize that no one benefiting from security measures is required to pay for food, lodging or other expenses for the officers assigned to them. The procedure is currently being assessed to improve the financial conditions of officers assigned to the Personal Protection and Security Division, as the budget allocated to the National Civil Police and the Ministry of the Interior is not sufficient to cover these costs. A special bonus payment for the officials is under examination.

Legislative reforms. A consultant has been engaged under contract to draw up the preliminary draft text of the reforms of the Labour Code in relation to freedom of association and collective bargaining with a view to bringing its provisions into conformity with Convention No. 87. It is planned to submit the draft reforms to Congress following consultations with the workers and employers at the end of September 2016. The Labour Commission of the Congress of the Republic has been approached concerning the harmonization of the legislation with international labour standards, starting with public campaigns on the importance of the reforms to the Labour Code, involving joint communication and analysis by the Ministry of Labour and Social Welfare and the Labour Commission. A preliminary draft has also been prepared of a legislative initiative to amend the Labour Code in relation to the application of administrative penalties for labour law violations covered by the General Labour Inspectorate, which will be submitted for tripartite consultation as soon as possible before being tabled in the Congress of the Republic.

Registration of trade unions. The Ministry of Labour, through the General Directorate of Labour, receives applications for the registration of trade unions and the recognition of their legal personality. There has been a significant increase in the registration of trade unions, with 52 unions being registered in the last quarter of 2015 and 61 in the first quarter of 2016.

Review and settlement of disputes by the Committee for the Settlement of Disputes in the area of Freedom of Association and Collective Bargaining. The Dispute Settlement Committee which has been operating since 2014, is reviewing 18 cases, in nine of which there are complaints pending before the Committee on Freedom of Association, while nine complaints have been brought directly to the Dispute Settlement Committee. The cases have been reviewed and examined by the Mediator and the Technical Secretariat to identify those which could be resolved by the Dispute Settlement Committee. Information will be provided on the outcome of this work.

Awareness campaign on freedom of association and collective bargaining. Work has begun on launching and promoting the awareness campaign, translated into the Maya, Kaqchikel and Kiche languages, through community radio broadcasts throughout the country that reach eight million listeners, as well as other initiatives to promote freedom of association and the right to bargain collectively. The campaign is aimed at sectors where there are few trade unions, such as the maquila sector. Information is available on the websites and social media of 14 government institutions: the Secretariat of Planning and Programming of the office of the President; the Secretariat for Food Security and Nutrition; the Secretariat for Peace; the Civil Aviation Authority; the Ministry of Culture and Sport; the Ministry of the Economy; the Ministry of Agriculture and Livestock; the Ministry of Social Development; the Ministry of Communication; the Ministry of Finance; the Ministry of the Interior; the Ministry of Foreign Affairs; TGW Radio; and the Government television channel. In conclusion, it is important to note that, in addition, the Government has submitted an amendment to Congress to the Act for the approval of the annual Budget that increases the financial resources of the judiciary so as to allow it to deal with and resolve the cases before it, reduce impunity and facilitate access to justice in Guatemala. This is all part of a process of short-, medium- and long-term structural reform in the country. A national dialogue, under the leadership of the Presidents of the three highest bodies, was therefore launched in May 2016 to strengthen action to combat impunity, under the slogan “For a reform of justice in Guatemala”.

In addition, before the Committee, a Government representative said that her Government was committed to complying with the obligations set out in the ratified Conventions. That commitment had already been demonstrated in a letter from the President of Guatemala to the Director-General of the ILO in March 2016, in which he also expressed his commitment to complying with the Memorandum of Understanding and the roadmap to address the issues regarding the Convention raised in the complaint lodged under article 26 of the ILO Constitution. At its 326th Session, the Governing Body had welcomed this communication and the report submitted by the Government, which described the progress made in the first weeks since the Government had taken office. She referred to the action taken from March to June 2016, which would continue to be implemented in preparation for the report that would be submitted to the Governing Body in November 2016. With reference to the role of the three branches of the State, she said that she was accompanied by a delegation from the Congress of the Republic, led by the President of the Labour Commission, with whom an intense process of coordination and cooperation had been initiated to promote the alignment of the legislation with the international labour standards, which would involve the participation of workers and employers. The strategies developed by the new Government for the 2016–20 period included: (1) combating corruption, modernizing the Government and strengthening the labour inspectorate by increasing its transparency and effectiveness; (2) guaranteeing food security, comprehensive health care and education, particularly through the reinforcement of the occupational safety and health system, with action and strategies relating to prevention and worker protection, and plans to combat and eliminate child labour through the management mechanism established in the roadmap to ensure that Guatemala is a country free from child labour; (3) promoting decent work on the basis of an update and definition of the national policy on employment as the general framework for the implementation of actions, plans and programmes aimed at reducing the decent work deficit in the country, decreasing informality in the labour market and increasing competitiveness and economic development in general; (4) combating poverty and extreme poverty; and (5) enhancing national security through the establishment of mechanisms that create decent work opportunities in the country to prevent crime and migration. These strategies were based on fundamental principles, such as dialogue, consensus and inclusion of stakeholders, and the legality, comprehensiveness and holistic perspective of public policy, while giving priority to the most vulnerable groups, including women, indigenous peoples, migrants, children, adolescents and young people. With regard to the application of the Convention, she said that, in her capacity as Minister, she had attended meetings at trade union offices, and the President had met with trade union leaders on several occasions. That demonstrated the commitment of the Government to building trust, promoting dialogue and seeking a common agenda. Furthermore, 61 trade unions had been registered in the first few months of 2016. The Government recognized the challenges presented by the situation of historic violence in the country, which also affected the lives of trade unionists. These challenges required profound structural changes. To that end, the “National dialogue: Towards the reform of the justice system in Guatemala” had been launched, with the aim of strengthening action against impunity in the country.

The CICIG Commissioner and the Chief Public Prosecutor had expressed their full commitment to convicting the perpetrators of criminal offences, having recorded 14 convictions so far. Progress had also been made in some pending investigations that were being examined by the Committee on Freedom of Association. She also referred to progress in the cases dealt with by the Dispute Settlement Committee. For example, in the case of the municipality of Masagua in Escuintla, the basis for a payment settlement of 7 million quetzals had been developed for 41 workers for unpaid wages, putting an end to a four-year dispute. All these achievements showed that the President and the Government remained firmly committed, despite constraints arising from the general situation in the country. The Minister appreciated the Director of the International Labour Standards Department having accepted her invitation to visit the country in July 2016. Finally, she reiterated her Government’s concern at the simultaneous use of several mechanisms to investigate the same allegations in relation to a particular country against which a complaint was being considered by the ILO Governing Body. She considered this to be a duplication of mechanisms, which undermined the functioning and credibility of the ILO supervisory bodies.

The Worker members emphasized that the case of Guatemala had been discussed by the Committee on 22 occasions in the last 25 years because of the country’s systematic refusal to take action in response to the serious observations and conclusions of the ILO supervisory bodies and because murders of trade unionists were continuing in a situation of almost total impunity. In September 2015, Mynor Rolando, a member of the Jalapa Municipal Workers’ Union, who had been unfairly dismissed and whose reinstatement had been ordered by the labour court, was shot dead (as another nine activists had been previously), while waiting for implementation of the reinstatement order by the mayor of the municipality and the payment of outstanding wages to the illegally dismissed employees. Instead, he had been targeted and harassed on account of his trade union activities and because he had filed a complaint in 2013 with the Committee on Freedom of Association, which had urged the Government to take the necessary steps to ensure the safety of trade unionists who were under threat. The Government had given no indication of any measures taken, even though the issue of the violence and impunity with which trade unionists were confronted in the country was well known to the ILO supervisory bodies. In its report, the Committee of Experts noted the “tragic” lack of progress in that area, which was an appropriate term to describe the fact that almost all the perpetrators and instigators of the murders of 74 trade union leaders and members were at liberty in a situation of total impunity. Of even greater concern was the fact that the office of the Public Prosecutor had called into question the anti-union motives for the murders, while recognizing that the appropriate investigation procedures had not been carried out. The Government was failing to protect trade unionists who were harassed, as the trade union leaders who were granted protection had to meet the cost of food and accommodation for their bodyguards and sometimes chose to discontinue the protection because of its cost. Despite the establishment of a telephone emergency line to report such acts of violence, it was clear that not all risks had been properly assessed, and that many threats against trade union leaders and members had not resulted in any prosecution by the office of the Public Prosecutor. The Government also remained indifferent to repeated requests from the trade unions to participate in the drafting of the protocol on the implementation of security measures. On the contrary, the Government had presented workers’ representatives with a fait accompli by inviting them to meetings at very short notice to sign draft documents in the preparation of which they not been involved.

Moreover, no progress had been made in the implementation of many other key elements of the roadmap agreed with the ILO. For 25 years Guatemala had been asked to amend provisions of the Labour Code which were contrary to the fundamental right to freedom of association, but the current Government appeared to be choosing to go down the same route as that taken by previous governments by failing to amend: section 215(c) of the Labour Code, which established the requirement for “50 per cent plus one” of those working in the sector in order to be able to establish a sectoral trade union; sections 220 and 223, which established the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity to be able to be elected as a trade union leader; and section 241, under the terms of which, in order to be lawful, strikes had to be called by a majority of the workers, and not by a majority of those casting votes; and by failing to ensure that various categories of public sector workers enjoyed the guarantees established by the Convention. The proposals made by the national trade unions reflected the observations of the Committee of Experts, but had also been ignored. It was to be hoped that the employers’ organizations would also play a more constructive role in pursuit of the common goal. However, a number of encouraging signs gave grounds for optimism, such as the abandonment of the decree on differentiated minimum wages, which aimed to fix a lower wage for the poorest municipal workers in the country, and the Ministry of Labour had begun to take measures to process applications for trade union registration. The Worker members also welcomed the launch of the campaign to raise awareness of freedom of association, which however remained on a very limited scale, since no use had been made of the mass media to reach society as a whole. However, in practice, while promoting freedom of association, the Government was stigmatizing collective bargaining for public sector unions and had published a list of collective agreements concluded with various government institutions that were supposedly detrimental to the state budget. It was unacceptable to hold the workers and collective agreements responsible for several decades of financial mismanagement and corruption. In conclusion, despite the significant efforts that had been made, they said that the situation remained extremely serious and all stakeholders needed to intensify their efforts to ensure the implementation of the roadmap without delay.

The Employer members said that this case was the one that had been examined more than any other in the history of the Committee. In that regard, they expressed concern at the fact that the case was being examined simultaneously by different supervisory bodies and questioned the articulation of these mechanisms. The Government had sent information on the measures taken to implement the roadmap agreed with the social partners. Social dialogue was becoming more fluid, and there had been progress since the case had been examined by the Committee of Experts. The dialogue between the President, the Minister of Labour and workers should be highlighted, along with the dialogue between the CICIG, the Public Prosecutor and the public prosecution services on the clarification of acts of violence. However, it was to be regretted that more cases had not been solved. Measures were needed in that regard, as well as to guarantee better protection for trade unionists under threat. It was impossible for them to provide for their own protection, and resources should be allocated for that purpose. With regard to legislative issues, particularly the requirement to be Guatemalan in order to hold trade union office, there needed to be a balance between trade union rights and the sovereignty of the State. They emphasized that there had been an increase in trade union registration. The Tripartite Commission on International Labour Affairs appeared to be making progress in its work, and employers and workers had both submitted draft reforms of the Labour Code to Congress. The Disputes Settlement Committee was an excellent mechanism, but better results were needed. In that regard, priority should be given to dialogue within the country. The Employer members rejected the suggestion that the application of the Convention should be examined from a sectoral point of view, particularly in the maquilas, as that was not provided for under the Convention. They highlighted the cooperation agreement signed with the European Union, but said that the Government should say whether the project would fund the continued presence of the representative of the Director-General’s in the country.

The Worker member of Guatemala emphasized that, in spite of the ILO’s efforts, the authorities were not abiding by their commitments, and systematic violations of the Convention continued. Trade unionists were still being subject to coercion, threats, persecution, intimidation, discrimination and unjustified mass dismissals. The situation was one of the most serious in the world, as reflected in the Global Rights Index 2016 report of the International Trade Union Confederation (ITUC), and trade union organizations had reported the murder of 74 trade union leaders, 18 of them since January 2013. The use of anti-union dismissals was also customary practice. The State was failing to conduct investigations, shed light on the facts, convict those responsible or even make enterprises reinstate trade unionists when final rulings required them to do so. The severity of the situation had been reiterated by the ILO supervisory bodies, and, within the framework of the Central America and Dominican Republic Free Trade Agreement (CAFTA–DR), the Government of the United States had requested that an arbitration panel be set up to deal with repeated violations of labour rights, highlighting the situation of freedom of association and collective bargaining. Technical round tables and the Disputes Settlement Committee had not produced the desired results. The presence of the Office of the Representative of the ILO Director-General in Guatemala was important, no progress had been seen with regard to the State’s commitments under the roadmap. Although minimal steps had been taken on the awareness-raising campaign, at the same time the Government and the office of the Public Prosecutor were conducting an open campaign against collective bargaining, with many collective agreements being called into question and legal action taken against workers engaged in bargaining. The Government’s actions and omissions demonstrated its lack of interest in finding a solution to the serious situation. The Government had a historic opportunity to implement the roadmap in practice, but if the failure of compliance persisted, the trade unions, while offering their support to make those commitments a reality, would insist on the appointment of a Commission of Inquiry.

The Employer member of Guatemala drew the Committee’s attention to the simultaneous recourse to several supervisory mechanisms. The case under discussion was part of a complaint presented under article 26 of the ILO Constitution that was currently before the Governing Body. Considerable progress had also been made over the years on the issues raised by the Committee of Experts. Regarding the killings of trade union leaders in recent years, he reiterated his indignation at such acts and called for them to be elucidated and the perpetrators punished. However, he welcomed the strengthening of the country’s institutions, both the office of the Public Prosecutor, which was responsible for bringing criminals to trial with the assistance of the CICIG, and the judiciary. Although few and far between, there had recently been convictions in some of the cases under review. But the lines of inquiry should not be restricted to anti-union cases, as the level of violence in Guatemala was high. He denied that anti-union violence as such was endemic in the country. He also regretted that workers refused to include employers in the inter-institutional coordination machinery that dealt with the problem, which would provide them with access to information and allow them to contribute to resolving a highly complex issue. He supported every effort to strengthen Guatemalan institutions with a view to elucidating the cases under discussion with the collaboration of the office of the Public Prosecutor and the CICIG, and though the establishment of special tribunals to deal expeditiously with crimes against trade union leaders, and the adoption of the necessary protection measures for trade union leaders and members who felt threatened in the exercise of their functions. As to the non-compliance with the Convention of certain provisions of the Labour Code and Political Constitution, he said that the process of consultations on the proposed reform had begun at the end of 2015 with the comments that the employers had sent to the workers, who had in turn submitted a very comprehensive draft incorporating their suggestions. It was to be hoped that, with the support of an independent expert provided by the ILO, the Government would shortly be in a position to present a final text to the Tripartite Committee which, after it had been duly discussed, could be placed before the Congress. He also drew attention to the public awareness campaign on freedom of association that the three parties had agreed upon, and to the work of the Disputes Settlement Committee. The employers participated in that Committee and considered it the best way of settling differences. It would be useful to have the same commitment by the workers in that and other bipartite and tripartite bodies. In conclusion, he expressed the gratitude of the employers of Guatemala for the ILO’s work in the country, especially that of the Representative of the Director-General in Guatemala.

The Government member of the Netherlands, speaking on behalf of the European Union (EU) and its Member States, as well as the former Yugoslav Republic of Macedonia, Norway and the Republic of Moldova, reaffirmed the engagement of those States to promote the universal ratification and effective implementation of the fundamental ILO Conventions. These States attached great importance to all human rights, including freedom of association, and recognized the important role played by the ILO in developing, promoting and supervising international labour standards. The EU and its Member States had followed closely the discussions and expressed their views on the case of Guatemala in the Governing Body with regard to the implementation of the 2013 roadmap and its indicators. He welcomed the strong commitment of the new Government of Guatemala to taking the necessary measures to enable full implementation of the Convention and the positive steps recently taken in this regard. He also welcomed the increased cooperation with the ILO, and invited the Government to step up its efforts, with the assistance of the ILO and in consultation with the social partners, in the following priority areas. First, there was a need for protection and to combat violence and impunity against trade union representatives. Despite some measures taken by the Government in this area, impunity persisted. It was therefore crucial to ensure proper follow-up of cases of killings of trade union officials and members, as well as the timely prosecution and conviction of the perpetrators. It was also crucial and urgent to ensure greater protection of trade union representatives at risk. Second, legislative reforms should be undertaken to bring the legislation into line with the Convention, with the assistance of the ILO. Finally, welcoming a significant increase in the registering of trade unions in the second quarter of 2015, he called on the Government to continue taking further steps to enable the unimpeded registration of trade unions. The EU and its Member States expressed their readiness to continue supporting Guatemala in its efforts to comply with the Convention.

The Government member of Mexico, speaking on behalf of the group of Latin American and Caribbean (GRULAC) countries, welcomed the political will of the new Government demonstrated in the first few months since it had taken office. The Government had shown signs of its commitment to guarantee labour rights, including the right to organize, and to promote the creation of decent work in the country, in cooperation with the ILO. That commitment had been reiterated in the letter of 9 March 2016 from the President to the ILO Director-General, which had been submitted to the March 2016 session of the Governing Body for its consideration. He urged the Government to redouble its efforts to clarify acts against trade union leaders and to provide the necessary guarantees to protect freedom of association. He also noted the actions carried out by the new Government to make progress in the implementation of the roadmap and timetable, presented at the 326th Session of the Governing Body in March 2016. At that session, the Governing Body had once again urged the Government to take, without delay, all the measures necessary to fully implement the key indicators and the roadmap, including the priority areas that continued to require additional and urgent action; and had deferred to its 328th Session (November 2016) the decision to consider the establishment of a Commission of Inquiry. It had finally invited the international community to facilitate the necessary resources to enable the Office of the Representative of the Director-General in Guatemala to strengthen its support for the tripartite constituents in the implementation of the Memorandum of Understanding and the roadmap. He called on all the parties to continue working together on the implementation of the measures adopted and future measures agreed in a tripartite setting with a view to identifying sustainable solutions and the full application of the Convention in the country. He recalled that the observance of the fundamental rights at work, particularly freedom of association and collective bargaining, was an essential component for achieving decent work. He therefore supported the work and the technical assistance provided by the Office of the Representative of the Director-General in Guatemala and called for its continuation for the full implementation of the roadmap in Guatemala. He concluded by reiterating his concern about the simultaneous use of supervisory bodies to address the same allegations relating to a country that were already being examined by the Governing Body. Such a duplication of mechanisms could weaken the functioning of the ILO supervisory bodies.

The Government member of Panama welcomed the efforts made by the Government with regard to the handling of criminal cases and the support provided for the Disputes Settlement Committee, as well as the commitment to making progress in implementing the roadmap and timetable, as reported to the Governing Body at its 326th Session in March 2016. Furthermore, he highlighted the valuable technical assistance provided by the ILO with regard to the recommended legislative reforms. On the other hand, he expressed concern at the fact that the situation was being examined by several supervisory bodies at once. Moreover, the Government of Panama, as extempore chair of the Council of Ministers of Central America and the Dominican Republic, reiterated its concern at the inclusion of Guatemala and two other countries in the region, namely Honduras and El Salvador, in the list of individual cases to be examined by this Committee. There was a lack of objective and transparent selection criteria. It seemed that the Committee did not value all the support that the ILO gave to countries in the region.

An observer representing Public Services International referred to threats to the life of many trade union leaders and the protection available to them, which they had gained through their own efforts and through the existence of international solidarity. However, these protection measures came with a cost, as trade unionists had to pay for the food and transport expenses of those responsible for their protection. In some cases, they even had to forego the protection, which demonstrated the existence of a structural problem that prevented the exercise of freedom of association. In the public sector, the gravity of the situation highlighted by the Committee of Experts continued to persist. There had been no progress in the investigation of threats to the life of trade unionists, and there was a deliberate campaign to abolish collective bargaining in the public sector, where 19 collective agreements were being renegotiated. In other cases, collective agreements were alleged to be unconstitutional. The media were also being mobilized against freedom of association, and trade unions that had concluded collective agreements were being attacked. There were still instances of anti-union dismissals, unions were being refused registration and a union leader had been arrested. However, he knew nothing about the initiative to amend the provisions of the Labour Code relating to freedom of association. For years there had been talk of organizing bipartite dialogue for the public sector to resolve these and other issues, but nothing had come of it. The workers were open to dialogue with international support in order to bring an end to the attacks on public sector trade unions and on public services. Urgent action was still needed to remedy corruption and to reinforce public investment and financing, decent work and the legitimacy of trade unionism in the public sector.

The Worker member of Colombia said that the fact that the case had been under consideration for years proved the existence of one of the clearest, most persistent and most systematic violations of freedom of association. In its comments, the Committee of Experts had referred to: (1) the need to investigate and prosecute those responsible for acts threatening the life or physical integrity of trade union leaders and members; (2) the protection of trade union leaders and members through real and effective measures; and (3) the adoption of legislation that was in line with the provisions of the Convention, which promoted and guaranteed the existence of trade union organizations without undue interference from employers or the State. He added that the case was similar to that of his country. It concerned continuous violations of freedom of association. These were not isolated events. The violations formed part of a legal and institutional structure to restrict the growth and existence of trade union organizations. An ambitious plan was needed to guarantee freedom of association that had a real impact on the ground by reducing the endless violations of freedom of association, promotion of the right to organize and bringing to an end the impunity for crimes against trade unionists. According to Guatemala’s trade union organizations, there had been no meaningful progress in the investigation of acts of violence against trade unionists. The protection measures that the Government said it had taken were not effective. He concluded by expressing the hope that the Committee would set deadlines and specific action to overcome the problems identified.

The Employer member of Mexico expressed regret at the violence of which trade unionists were victims, but said that it was occurring in the context of the violent situation in the country. He considered that action aimed at a solution to the problems needed to be supported. He nevertheless regretted that the examination of the same situation before different supervisory bodies was duplicated, and considered that this did not contribute to solving the problems.

The Government member of Canada referred to a number of issues raised by the Committee of Experts in its comments and the article 26 process, including the agreed action called for in the roadmap. Expressing strong support for the completion of the roadmap, she called on the Government of Guatemala to spare no effort in making demonstrable progress towards legislative reforms. Her Government was troubled by the additional allegations of serious acts of violence against trade union officers, as outlined in the report of the Committee of Experts. She called for adequate investigatory, prosecutory and protective measures to be undertaken without delay in order to allow the free exercise of labour rights. Reaffirming the commitment of her Government to respect human rights through the full application of international human rights instruments, such as Convention No. 87, she urged the Government of Guatemala to translate into action its commitment to the implementation and respect for these instruments.

The Worker member of Spain, speaking on behalf of the General Union of Workers (UGT) and the Trade Union Confederation of Workers’ Commissions (CCOO), considered that Guatemala was the most blatant example of the systematic violation of fundamental rights and failure to respect the principles of good faith which should prevail in the application of international treaties. He regretted the lack of progress in a case that had been examined by the Committee on 18 occasions in the past 25 years. In addition to the most extreme forms of violence against the trade union movement and the climate of impunity, there were still many other violations of freedom of association such as the criminalization of union activities, the ineffective judiciary and labour inspectorate and the lack of protection against acts of intimidation, interference and anti-union discrimination. While on the one hand, it was launching a timid public-awareness campaign on freedom of association, on the other, the Government was engaging in reprehensible efforts to discourage workers from joining trade unions through threats, persecution and dismissals. The right to bargain collectively was also being infringed by the office of the Prosecutor–General which was taking legal action against collective agreements that had been negotiated with State institutions and municipalities. In this context, he called on the Government to bring an end to restrictions on: the establishment of trade unions and the right to elect union leaders freely; the right of organizations to carry out their activities, including the possibility to impose compulsory arbitration in the public transport sector and to impose sanctions, including penal sanctions, in the event of strike action or other forms of trade union protest by public employees or workers in certain enterprises; the denial of trade union rights in practice for many public sector workers engaged under budget item 029; the restrictions on the right to strike; the deliberate delay in reinstating trade unionists who had been dismissed; and the restrictions on collective bargaining in the public sector and the maquila sector.

The Employer member of Panama said that the ILO was acting in a contradictory manner regarding countries that were trying to resolve conflicts through tripartite social dialogue. On the one hand, for over ten years, the ILO had promoted the establishment of tripartite dialogue round tables in member States with the aim of addressing and resolving existing differences at national level by means of dialogue and negotiation between the social partners. He emphasized that this methodology had proven to be an appropriate way to resolve disputes, as demonstrated by the experiences of the tripartite dialogue round tables created by Colombia and Panama. The Government, with support from the ILO, had decided to follow this path by establishing a tripartite dialogue round table and developing a roadmap aimed at resolving conflicts and complaints brought before the Organization. On the other hand, by including countries that were taking this route on the list of cases to be discussed by the Conference Committee, the ILO was sending a discouraging message that it was not worth making the necessary efforts to strengthen tripartite dialogue round tables. He emphasized that, on the contrary, the ILO should redouble its efforts through the provision of technical assistance to obtain positive results from tripartite dialogue round tables in countries where they had been established.

The Worker member of the United States indicated that, while ILO member States increasingly ratified trade agreements which included commitments to honour ILO Conventions and declarations referring to them, the reluctance and ineffectiveness of governments to use ILO instruments to protect workers’ rights in the framework of international trade was still a cause of concern. Guatemala and the United States were two such governments. The CAFTA–DR had taken effect between the United States and Guatemala in 2006. The Agreement required the parties to recognize and protect freedom of association and other rights included in the 1998 ILO Declaration on Fundamental Principles and Rights at Work. While the fact that the United States had not ratified most of the core Conventions at the heart of the Declaration was itself a problem. Guatemala had ratified, but persistently failed to comply with the Convention under discussion, but still continued to receive the trade benefits stemming from the CAFTA–DR. Last year, before the Conference Committee, information had been shared on the tortuously long seven-year path travelled by Guatemalan workers to begin the CAFTA–DR dispute resolution process. One year ago, the arbitration panel had heard arguments touching almost entirely on the Convention. Since the arbitration had begun, Guatemalan workers had experienced new delays. The initial dispute settlement panel report was now expected later this month, over eight years after the Government of the United States had received the workers’ petition. Guatemalan workers had documented many violations of the Convention, including union leaders being offered bribes to quit their jobs and to convince workers not to join unions; workers being fired for union affiliation or for not disbanding unions; non-enforcement of relevant laws; and a lack of investigations, prosecutions and punishment of the perpetrators of violations of freedom of association. Violations had continued while the petition had been under consideration. During the eight years that the petition had been pending, 61 trade union leaders and members had been murdered. The great majority of the perpetrators and all instigators of murders of trade union officers and members remained at large. The ILO had made clear on numerous occasions the connection between anti-union violence and the ability to exercise freedom of association. While the staff of the United States Trade Representative had suggested to leaders of the United States labour movement that murdering a trade unionist or perpetuating violence against a trade unionist did not violate the labour standards in the trade agreement with Guatemala, the ILO had long been clear on the matter. Anti-union violence was a violation of the Convention.

The Government member of the United States, referring to the information provided to the Committee by the Government representative, welcomed the Government’s new perspective and commitment to address the long-standing issues in this case. She was confident that the Government would provide the necessary resources and enforcement tools for the Ministry of Labour to implement the measures needed to protect workers from all forms of anti-union discrimination and to ensure full remedies under the law when such violations occurred. The serious issues in the case before the Committee had been well-documented and discussed for many years. The new procedures established by the Government to improve the investigation of murders of trade unionists had been noted. The establishment of those procedures was an important step, but she remained deeply concerned at the high degree of impunity that persisted. The Government was encouraged to strengthen the application of these procedures, continue and enhance cooperation with the CICIG and provide additional resources for the investigation and prosecution of violence and threats against trade unionists. The recent efforts by the Ministry of Labour to reduce the backlog of pending union registrations were welcomed. She looked forward to the institutionalization of efforts to produce systemic change to expedite the registration of unions and collective bargaining agreements in future. However, she was particularly concerned at the very low rate of union and collective bargaining agreement registration in the maquila sector and the recent challenges in the public sector. The fact that the Government had sought ILO support to better educate members of the judiciary about international labour standards was a positive step. However, to date, training had not yet translated into increased compliance with labour court orders for victims of anti-union dismissals. The Government was urged to give immediate attention to this matter and to take all necessary steps, including criminal prosecutions, to ensure full compliance with labour court orders, in particular reinstatement orders, within the legally established time frames. Similarly, Guatemala’s recent request for ILO technical assistance to develop legislation that addressed the recommendations of the ILO supervisory bodies was welcome. She looked forward to the expeditious introduction of legislative proposals to address the specific issues of non-compliance in law raised by the Committee of Experts, as well as a proposal to restore authority to the Ministry of Labour to impose sanctions directly. She urged the Government to take full advantage of ILO technical assistance and to seize the opportunity to ensure respect for workers’ rights in Guatemala by issuing additional legal instruments and introducing tangible improvements in labour law enforcement, and by allocating the necessary resources for that purpose.

The Worker member of Italy, recalling the repeated presence of the case before the Committee, as well as the high number of cases concerning Guatemala examined by the Committee on Freedom of Association, said that effective and real action had to be taken urgently. The figures for murders and violence against trade unionists were a shocking indictment of the situation faced by workers in Guatemala every day for over 25 years. In this sea of violence, the Government continued to be inactive, resulting in a worsening of the situation with regard to both criminal and labour law offences, for which there would never be convictions, while offenders benefited from impunity and the absence of the rule of law. The international labour community needed to act, as the rights enshrined in the Convention had been denied every day for over two decades. In conclusion, she called for: the appointment of a Commission of Inquiry with no further delay; the development by the office of the Public Prosecutor of an integrated investigation policy allowing a modernization of investigation techniques to be applied in cases of violence against trade unionists; major cooperation between the office of the Public Prosecutor and the CICIG to punish acts of violence against trade unionists; and a protection plan for worker victims of anti-union violence in order to ensure their personal integrity.

The Government member of the Dominican Republic said that her Government aligned itself with the statements by GRULAC and the Government of Panama. She expressed her support of the Ministry of Labour and recognized the Government’s willingness and efforts focused on achieving decent work, social dialogue and respect for freedom of association, in accordance with the commitments deriving from ILO Conventions. She requested ILO support for the work of the Conflict Resolution Committee so it could achieve positive results.

The Government representative reiterated that the Office of the Public Prosecutor had brought charges and initiated proceedings against the perpetrator of the murder of Mynor Rolando, and that the public authorities were determined to shed further light on the case and on the other cases of murder of trade unionists. Together with the trade union organizations, budgetary alternatives were being sought to ensure that the expenses were covered of officers in the National Civil Police who were assigned to protect individuals. Regarding collective agreements in the public sector, she recognized that the Government needed to overcome a series of challenges, but said that the social partners should adopt the same approach and contribute to developing a joint strategy to overcome the challenges. Corruption in Guatemala had also found its way into the trade union organizations, although it was not fitting that the actions of a few individuals should damage the entire trade union movement. She therefore invited the social partners to work together to find the right path for the good of the country, taking into account the reality of the current situation. She shared the concerns voiced by the Worker member of Guatemala regarding the very high level of violence in the country. However, violence was a historical issue, which could not be resolved overnight and needed to be addressed by everyone. She reiterated the Government’s total commitment combat impunity. Concerning the protocol for the protection of trade unionists, trade union organizations were fully aware that a technical round table had been set up with the Ministry of the Interior, at which months of discussions were being held on the content of the protocol. Although consensus had not been achieved owing to a lack of maturity and objectivity, the Government had decided that, despite certain disrespectful comments and attitudes on the part of the workers, it would keep the round table open in order to continue receiving the views of the workers. The Government had decided to decentralize the administrative procedures related to the registration of trade union organizations, thereby making the procedures easier for users and avoiding the unnecessary costs incurred by the intervention of third parties. Government procedures complied with the law at all times, which meant that the law applied to everyone equally. In that regard, the proceedings involving the dismissal of the trade unionist Erick Colmenares, initiated in 2014 under a previous government, had followed the appropriate judicial procedure, and had resulted in the authorization of the dismissal by the highest judicial body in Guatemala. She therefore requested the trade union organizations to support compliance with the law. With regard to the requested legislative reforms, she reiterated that the appointment of an expert to prepare a draft law was part of the technical assistance provided by the ILO. After having listed a number of initiatives that had been notified to the Tripartite Commission on International Labour Affairs, she gave the floor to the President of the Labour Commission of the Congress of Guatemala. The President of the Labour Commission said that there was political will in Congress to reform the national labour legislation and that his Commission was fully prepared to work with the Tripartite Commission and the ILO.

The Worker members emphasized that the new examination of the case of Guatemala was a result of the Government’s persistent failure to implement the conclusions adopted by the Committee and other ILO supervisory bodies. Guatemala remained one of the most dangerous countries in the world for trade unionists. The Governing Body had endeavoured to launch a constructive dialogue with the Government with a view to finding practical solutions to extremely serious violations. However, in reality serious violations were continuing without respite and without incurring any significant penalties, thereby creating a situation of virtual impunity. The Committee of Experts had reflected the seriousness of the situation in its comments and described the lack of progress as “tragic”. The Worker members would take every possible action, at the ILO and elsewhere, to bring an end to violence and impunity. They noted the Government’s indications concerning the small number of court judgments that had resulted in convictions or acquittals. However, it was unacceptable that all the perpetrators and instigators of the murders of 74 trade unionists were at liberty in a situation of total impunity. Furthermore, it was particularly worrying to hear that the anti-union motives for the murders were being questioned. By claiming that these crimes were due to the general climate of violence in the country, the Government was shirking its own responsibility and thus helped to perpetuate the situation of impunity. They emphasized that the Government had once again failed to take the necessary steps to amend the national legislation in order to bring it into line with Conventions Nos 87 and 98, further to the observations of the Committee of Experts. Guatemalan trade unions had put forward a series of proposed amendments to the legislation that were strictly in line with the recommendations of the Committee of Experts, but the proposals had been ignored. They welcomed the fact that a number of trade unions had finally been registered, but it was regrettable that little progress had been made towards removing the obstacles to registration. They also deplored the blatant attempts to stigmatize collective agreements in the public sector by holding the public sector workers responsible for the disastrous state of the economy and for the financial mismanagement of the national budget. Finally, they urged the Government to: provide rapid and effective protection for all trade union officers and members at risk, by increasing the budget allocated to protection programmes for trade unionists so that the latter were not obliged to cover the costs of their own protection; submit a bill to Congress by September 2016 at the latest, based on the comments of the Committee of Experts, to bring the national legislation into conformity with Conventions Nos 87 and 98; remove the various legislative obstacles to the freedom to establish trade unions and, in consultation with the social partners and with the support of the Special Representative of the Director-General of the ILO in Guatemala, review the procedure for processing applications for trade union registration; ensure large-scale dissemination in the media of the awareness-raising campaign on freedom of association; and bring an immediate end to the stigmatization and denigration through the same media channels of the collective agreements in force in the public sector.

The Employer members highlighted the significant progress made in the case, including the support that the ILO had provided to the Government to take positive measures to resolve disputes and the registration of new trade union organizations. However, there were still some problems to solve, such as the investigation, identification and prosecution of those responsible for the murder of trade unionists, risk studies for the protection of trade unionists and the adoption of legislative reforms. With regard to the legislative reforms, they expressed two reservations concerning the issues raised by the Committee of Experts. The first concerned the scope attributed to the Convention in relation to strikes. Recalling that the position of the Employers on this point had not changed, they did not support the request made for legislative reforms in this regard. The second reservation concerned the request by the Committee of Experts’ to remove the prohibition on foreigners or those who were not of Guatemalan origin from holding trade union office. In the view of the Employer members, the Government must have full sovereignty over whether or not to grant this right. In addition, they said that they wished to see progress in the coordination with the Conflict Resolution Committee through the appointment of a person who enjoyed the trust and recognition of the parties and could resolve the issues. They took note with interest of the mass awareness-raising campaign on freedom of association and collective bargaining. Recalling that the application of the Convention would be analysed by the Governing Body in November 2016, which meant that expectations of progress were extremely high, they emphasized that it was important for the Special Representative of the Director-General in Guatemala to be able to fulfil his mandate fully with the aim of strengthening social dialogue. They said that, on the basis of the above, the conclusions in the case should include the following elements: highlight the need for greater involvement of the public prosecution services in cases of trade unionists being murdered; encourage Congress to pass the relevant legislative reforms, with the reservations expressed above; take note of the public awareness-raising campaign and call for it to be undertaken more actively; encouraging the Conflict Resolution Committee to deliver positive results; and emphasize the need for the steps set out in the roadmap to be successfully implemented.

Conclusions

The Committee took note of the information provided by the Government representative, in the presence of Congress representatives, and the discussion that followed on issues raised by the Committee of Experts.

The Committee noted with interest the national awareness-raising campaign on freedom of association which was being supported by the Special Representative of the Director-General.

Taking into account the discussion of the case, the Committee urged the Government to:

• - investigate, with the involvement of the Public Prosecutor’s Office, all acts of violence against trade union leaders and members, with a view to determining responsibilities and punishing the perpetrators, taking the trade union activities of the victims fully into consideration in the investigations as one of the possible motives;
• - provide rapid and effective protection to all trade union leaders and members who are under threat, increasing the budget allocated to protection schemes for trade unionists so as to ensure that protected individuals do not personally have to bear any costs arising from those schemes;
• - submit to the Congress, before September 2016, a draft law related to the number of workers to constitute a trade union and the categories of workers in the public sector to ensure the conformity of national legislation with Convention No. 87;
• - eliminate the various legislative obstacles to the free establishment of trade union organizations and, in consultation with the social partners and with the support of the Special Representative of the Director-General, review the handling of registration applications;
• - disseminate in the national mass media the campaign on freedom of association and collective bargaining supported by the Special Representative of the Director-General and ensure that there is no stigmatization whatsoever against collective agreements existing in the public sector;
• - continue to support the work of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining;
• - continue taking the necessary steps to fully implement the roadmap adopted on 17 October 2013 in consultation with the social partners.

The Government representative noted the Committee’s conclusions and reiterated her Government’s responsibility for and commitment to complying with ILO standards. It was important to work and coordinate with the social partners in an objective and mature manner in order to make progress in that regard.

Individual Case (CAS) - Discussion: 2015, Publication: 104th ILC session (2015)



A Government representative emphasized the Government’s continued action focused on lawful labour relations, social dialogue and its commitment to the promotion of decent work and freedom of association. With regard to the deaths of trade unionists, since the adoption of the “roadmap” concluded on 17 October 2013 by the Government of Guatemala in consultation with the country’s social partners, with a view to accelerating the implementation of the Memorandum of Understanding between the Workers’ group of the ILO Governing Body and the Government of Guatemala (“the roadmap”), there had been significant progress in ensuring and respecting freedom of association, strengthening trade unionism and protecting trade union leaders. The Special Representative of the ILO Director-General in Guatemala had aided and witnessed technical assistance activities, including the provision of training to the judicial authorities, the Office of the Public Prosecutor and the Ministry of the Interior, which had been the result of substantial political and institutional efforts and commitment. All the cases had been transmitted to the Special Investigation Unit for Crimes against Trade Unionists of the Public Prosecutor’s Office with a view to improving the monitoring and developing criteria for investigations. A general directive for the effective criminal investigation and prosecution of crimes against trade unionists, members of workers’ organizations and other labour and trade union activists had been agreed upon and was being implemented. The Public Prosecution Services were investigating 70 cases, and it should be borne in mind that the country was beset by problems of criminality and violence that affected the entire population. With a view to better dealing with and solving the 58 cases of violent deaths of trade unionists brought before the Committee on Freedom of Association, the Office of the Public Prosecutor and the International Commission against Impunity in Guatemala (CICIG) had concluded a collaboration agreement in September 2013 as part of reinforcement of investigation capacity. The CICIG had found that in only 37 of the 56 cases examined had the victim been a trade union member. The motives for the murders had varied, and only six people appeared to have been murdered as a result of their trade union activities, and in four cases, the connection of the victims with a union was not clear. Proceedings were under way and the results would be reported in due course. The Protocol for the Implementation of Immediate and Preventive Security Measures for Human Rights Activists in Guatemala was also being applied to trade unionists. There had been 25 requests for protection made to the Public Prosecution Services. The trade union protection committee held monthly meetings with all trade union organizations as well as weekly meetings with trade union representatives and investigators from the Office of the Public Prosecutor to follow up on cases being investigated. The Ministry of the Interior had set up a direct telephone hotline and, most importantly, the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining had been successfully established. The latter was examining cases submitted to the Committee on Freedom of Association and information would be provided on developments. Regarding legislative matters, the Government had submitted draft legislative reforms to the Tripartite Committee on International Labour Affairs, while the social partners had made their own proposals. As agreement had not been reached, the various proposals, together with the comments of the Committee of Experts, had been forwarded to Congress. With ILO assistance, the Government would continue its efforts to ensure that freedom of association and collective bargaining were respected. He therefore requested the strengthening of ILO presence in Guatemala.

The Employer members said that this case had been addressed on numerous occasions and was being examined by several ILO bodies through various mechanisms, and they therefore considered that, as it was before the Governing Body, the present case should not be examined by the Conference Committee. In addition to the complaints before the Committee on Freedom of Association, various matters considered serious and urgent relating to freedom of association and workers’ rights were covered by an article 26 complaint to the Governing Body. The case contained several elements, among which the murders of trade unionists affecting the peaceful exercise of freedoms should be highlighted. Over recent years, further murders had been reported. The case also referred to legislative issues, the application of the Convention in practice, registration of trade unions and rights in the maquila (export processing) sector. With regard to the murders, 58 cases were being examined by the Committee on Freedom of Association, 12 of which since 2013. At the national level, in addition to the Public Prosecutor’s Office, there was the CICIG, which was an international investigation body and which had analysed 37 cases, six of which were related to trade union activities. The CICIG had made suggestions for improving investigation methods. Most of the murders had occurred in areas of the country that were particularly violent and it had not been demonstrated, at least during the present discussion, that there was a practice of killing trade union members. The Special Investigation Unit for Crimes against Trade Unionists established in the Office of the Public Prosecutor had been strengthened, and there was also a mechanism for the protection of trade union leaders and members. The Government had adopted measures. An ILO high-level mission had also visited the country and a Special Representative of the ILO Director-General had been sent to the country to provide close and direct support for the required changes in law and practice. A request had been submitted to the Governing Body for the appointment of a commission of inquiry, and the Conference Committee was also examining the same allegations. It was therefore necessary to define the approaches and the most effective mechanisms for the proper examination of the application of Conventions and government replies to the supervisory bodies. With regard to legislation, several points needed to be emphasized, such as the number of members required to establish a union, and the requirement to be nationals of Guatemala and to work in the enterprise to be able to be elected as a trade union leader. These limitations should be reviewed. With reference to nationality, it should be understood that there was reasons of national sovereignty for limiting foreign nationals in trade union executive bodies. The Employer members had described in detail in their intervention during the general discussion of the General Report of the Committee of Experts their disagreement with the views of the Committee of Experts concerning Convention No. 87 and the right to strike. They emphasized that as there were no ILO standards on strikes, the scope and conditions of the exercise of the right to strike should be regulated at the national level, a position that had also been endorsed by the Government group in its position statement at the tripartite meeting held in February 2015, and endorsed by the Governing Body in March 2015. The Employer members reaffirmed their intervention during the discussion of the General Report that as there was not a specific standard on strikes, governments could legitimately adopt a different approach to strikes, to be determined at the national level. Regarding the roadmap and the application in practice of the Convention, certain institutions were operational and social dialogue should be prioritized to address the problems. There were two trade union organizations and awareness-raising campaigns in the maquila sector and information had been requested on their impact. In conclusion, this case, as it was on the agenda of the 324th Session (June 2015) of the Governing Body, should be settled by the Governing Body and not the present Committee.

The Worker members said that the Government of Guatemala had been conspicuous in having been invited to appear before the Committee on 21 occasions over the past 25 years. Such frequent inclusion of the country in the Committee’s list stemmed from the fact that it systematically refrained from taking corrective measures in response to the observations and conclusions of the ILO supervisory bodies in the field of freedom of association and collective bargaining. In many cases, the Government had simply chosen not to reply. Despite the conclusion of a Memorandum of Understanding and the Government’s commitment to follow a roadmap with respect to labour policy, and also the dispatch of technical missions and a high-level mission by the ILO, the Worker members observed that no substantial progress had been made. With regard to trade union rights and civil liberties, the Worker members deplored the fact that no light had been cast on the cases of 74 trade union members who had been assassinated over the past ten years, including 16 trade unionists in 2013 and 2014. Analysis of the report submitted to the Committee of Experts by the Government confirmed that none of the perpetrators of these crimes had been arrested to date. Moreover, no progress had been made on constructing a normative and institutional framework to protect workers against violations of their rights. In addition, no specific measures had been taken to ensure the free exercise of freedom of association in a climate in which trade union leaders and their families could be safe from all violence, pressure and threats. The Government had not paid sufficient attention to workers’ human rights. Rather than focusing its efforts on positive measures aimed at meeting its commitments towards the ILO, it had adopted measures that ran counter to decent work and workers’ rights. Such measures had been imposed without any consultation with the trade unions, which constituted a clear violation of the Conventions on collective bargaining and freedom of association. Furthermore, the unilateral announcement by the Government regarding non-renewal of collective agreements in the public sector was an infringement of Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Even though the Government imputed that measure to the need to tackle the budget deficit, it should not refuse to negotiate, as this would constitute a flagrant violation of ILO Conventions. With regard to the serious problems of anti-union discrimination in the maquila sector, the legal obstacles, lack of inspections and slowness of the labour courts partially explained why there were only three enterprise unions and one collective agreement in the sector, which employed some 70,000 workers. In the majority of cases, the Government had not guaranteed the reinstatement of workers who had been dismissed illegally even though it had additional instruments that would have enabled it to revoke tax incentives and other advantages granted to exporters. Anti-union discrimination thus persisted in the sector, despite the Government’s indications. With regard to legislative issues, the Worker members regretted that the Employer members did not agree with the observations of the Committee of Experts. They expressed their concern at such a position being used as a pretext by the Government not to submit draft legislation to the Congress. Legislative reforms were sorely needed to enable the labour inspectorate to fulfil its mandate. With regard to the registration of trade unions, the Worker members emphasized that the labour judges and magistrates recognized themselves that there was an extremely high number of instances of non-compliance with court rulings ordering employers to reinstate individuals who had been dismissed for establishing trade unions. The obligations in question had never been fulfilled and, on the contrary, the processes for the selection of magistrates for the Supreme Court of Justice and the Court of Appeal clearly showed the total absence of judicial independence. Those processes were not in conformity with international standards, especially as far as their objectivity and transparency were concerned. In conclusion, the Worker members considered that the Government had failed to honour all of its commitments made in the context of the roadmap and had persisted in its indifference towards the repeated recommendations of the ILO supervisory bodies. Moreover, the Government had been brought before an arbitration board for systematic non-observance of its own Labour Code. The Worker members deplored the fact that the lack of significant progress was not due to a lack of instruments or resources, but the persistent lack of will by the Government. They welcomed the presence of the Special Representative of the ILO Director-General in Guatemala and considered the support of the international community to be of incalculable importance in view of the gravity of the situation concerning trade union rights.

The Employer member of Guatemala contested the fact that the present case was being discussed by the Committee as the facts under discussion had served as the basis for the complaint lodged under article 26 of the ILO Constitution, which would once again be examined by the Governing Body. The requirements of the roadmap were being complied with. The employers in the country were actively participating in tripartite forums, particularly in the framework of the elaboration of draft legislation in response to the comments of the Committee of Experts. There was the hope that the draft legislation would be submitted to Congress in the near future. Another issue on which the employers in the country were actively working was the awareness-raising campaign concerning freedom of association. With regard to the acts of violence, the ILO missions had managed to verify the will of the Office of the Public Prosecutor to solve the issues that had been raised by the Committee of Experts in its report. In any case, account should be taken of the information provided by the CICIG, which indicated that most of the crimes that had been reported as acts of anti-union violence had had in reality other causes. That was not an excuse for those crimes to go unpunished. He acknowledged that it would be very difficult for the Committee to solve the problems caused by the wave of criminality that affected the country, which went beyond the field of labour. The efforts that were being made by the Special Representative of the Director-General and the Committee for the Settlement of Disputes before the ILO were to be welcomed.

The Worker member of Guatemala welcomed the appointment of a Special Representative of the ILO Director-General in Guatemala, with a far-reaching role. The observations of the Committee of Experts were based not only on the usual sources, but also on information collected by ILO missions. The latest mission to visit the country in May 2015 had confirmed that the issues raised by the Committee of Experts had still not been resolved. Violations of human and civil rights in the country continued to be a serious problem. Up to now, no individuals had been imprisoned for the murders committed. A request had been made for an agreement to be reached with the CICIG to investigate these crimes, but there had been no response. Regarding the roadmap, there were no significant changes worth noting, as the Government had yet to move from general measures to specific action to protect trade unionists. Concerning the legislative reform which limited freedom of association, no progress had been made. On the registration of trade unions, nothing had improved, and statistical information was being sought on registrations and collective agreements. The Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining had not addressed these issues and had only just started to examine a few cases, with little progress being achieved so far. Violations of trade union and labour rights were serious and were becoming more intolerable every day. The Government had failed to take advantage of the opportunity presented by the roadmap to take really significant action on the issue. Such commitments, which involved social and institutional change, required genuine participation by workers in identifying issues, developing solutions, and applying and monitoring those solutions. The trade unions were willing to meet to move forward in that regard, as the current labour situation left no room for delay.

The Government member of Cuba, speaking on behalf of the Group of Latin American and Caribbean Countries (GRULAC), recalled that the Government of Guatemala had appeared before the Governing Body on six occasions and one discussion of the present Committee to address the case. The Government had reiterated its commitment to the ILO supervisory bodies and had provided regular information on the situation and on the strengthening of the relevant institutions in the country. The Committee of Experts had noted that the Government was taking all possible steps to combat violence and impunity. She appealed to all sectors to continue working together to implement the measures agreed upon and any other measures that might be agreed to on a tripartite basis in the future. GRULAC was confident that the constituents would pursue their efforts to apply the Convention and supported the request to strengthen ILO presence in the country. Lastly, the parallel use of different mechanisms to address the same allegations continued to be a matter of concern, as it could weaken the functioning of the ILO supervisory bodies.

The Employer member of Panama said that it was not clear why the case had been included on the list of individual cases for examination by the Committee, as there had been a procedure since 2012 under article 26 of the ILO Constitution on the same issues. Since the complaint had been lodged, measures had been taken and concrete results had been achieved, such as the signing of the Memorandum of Understanding, the appointment of a Special Representative of the Director-General of the ILO, the preparation of a roadmap in October 2013, the creation of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining, and the high-level mission of September 2014. The Government had demonstrated its willingness to comply with the commitments made in the roadmap. The efforts made by the ILO to promote the creation of dialogue round tables and to help the country to solve its problems were very important and had been fruitful. Guatemala was the third country in Latin America which was endeavouring in good faith to replace the tradition of confrontation with social dialogue and had offered proof that it was working to fulfil those objectives. For that reason, the discussion of the case was in contradiction with the aims of the ILO, especially since it was already under examination by the Governing Body.

The Government member of Norway, also speaking on behalf of the Government members of Denmark, Finland, Iceland and Sweden, said that trade unionists should under no circumstances face harassment, intimidation, and certainly not death. While noting the information provided by the Government, she expressed serious concern about the persistent threats experienced by trade unionists and that little tangible progress had been made. During the discussion at the 323rd Session (March 2015) of the Governing Body on the article 26 complaint, the governments of the Nordic countries had supported the appointment of a Commission of Inquiry. She called on the Government to comply with its commitments regarding individual freedoms and public participation, the rule of law and legal protection. She urged the Government to take action for the investigation, prosecution and conviction of the perpetrators of the murders of trade unionists as well as other acts of violence. She expected that the Government would promptly take all the necessary measures to ensure the protection of trade union officials and members. She urged the Government to adopt the necessary reforms to align the national legislation with the Convention. The Congress of Guatemala should adopt on an urgent basis the legislative reforms requested by the Committee of Experts. The ILO was playing an important role in implementing the Memorandum of Understanding, but the Government had not taken sufficient advantage of that support. She urged the Government to strengthen its efforts to give effect to commitment to the roadmap and the Memorandum of Understanding, and she encouraged it to deepen and strengthen its engagement with the ILO, as well as with the social partners.

An observer representing Public Services International (PSI) said that up to now the crimes against trade union leaders had still not been punished. Several trade union leaders were under threat and had lodged complaints, that had gone unanswered. Impunity in the public service fuelled corruption, nepotism and the removal of workers’ collective rights and prerogatives. Short-term contracts and precarious work, without any type of social security or minimum benefits, were the Government’s preferred tools to maintain strict control over workers. Collective agreements were banned on the pretext of the need to deal with the huge fiscal deficit. There was a media campaign against the main trade unions, and therefore on collective bargaining. The Government refused to comply with the collective agreements that had been concluded or to participate in joint committees. The existence of “yellow unions” was also a major problem, as they entered into collective accords that reduced workers’ protection. The political climate was becoming increasingly volatile, which was having a major impact on the provision of public services, working conditions and trade union rights. The prevention of violence, the development of a culture of peace and dialogue, democracy and high-quality public services were key elements in ensuring the future that the country deserved. For these reasons, he called for the urgent establishment of a round table for the public sector in the Ministry of Labour and the creation of a permanent ILO office in Guatemala.

The Government member of Honduras said that his Government supported the statement made by GRULAC. It was the seventh time that the case had been discussed since November 2012. He welcomed the continuous cooperation between the Government and the ILO supervisory bodies. He trusted in the Government’s openness and willingness to engage in dialogue with all social partners and in its commitment to continue working with assistance from the ILO. He encouraged the Government to continue working to apply the Convention effectively.

The Worker member of Colombia said that anti-unionism was systematic in Guatemala. As such, the measures that had to be taken should go further than the creation of round tables for dialogue and promises of legislative change. An ambitious plan was required to establish freedom of association. In this case, as in no other, the ILO was providing proof of its effectiveness and utility. In Guatemala, the situation was characterized by impunity and a persistent generalized atmosphere of violence against trade unionists. There had been no significant progress in investigating acts of violence, and the protection measures taken bore no relation to the severity of the circumstances, and were therefore ineffective. There was a legal and institutional blockage of freedom of association, and the Committee of Experts had urged the Government to take steps to amend the Labour Code. Legal obstacles made it impossible to exercise trade union rights, including the right to strike, which was an integral part of the right to organize protected by the Convention. Trade unions were an example of democratic resistance and had held mass demonstrations to voice their anger at violence and corruption. The conclusions of the Committee should go beyond the expression of the usual concerns and general calls on the Government to accept ILO technical assistance and should specify the elements and deadlines of a plan to overcome the problems identified during the discussion.

The Employer member of Honduras indicated that it was curious that the case was being discussed once again, as it was under examination by the Governing Body under article 26 of ILO Constitution. The case should not therefore be discussed by the Committee. The Government was complying with its commitments in relation to the Special Representative of the Director-General and this case should be considered a case of progress as well as an appropriate, effective and ongoing intervention of the ILO. All of that was well-known to employers’ and workers’ organizations, which needed to work together to improve the labour environment in the country. Support should be provided for the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining, which had a tripartite structure and reported good results.

The Government member of Switzerland emphasized that the serious acts of violence against leaders and members of trade unions, including alleged assassinations, were a matter of great concern. She echoed the regret expressed by the Committee of Experts concerning the situation and climate of violence and impunity that continued to prevail in Guatemala. New allegations of assassinations of trade unionists had emerged since the adoption in October 2013 of the roadmap to accelerate the implementation of the Memorandum of Understanding between the Government of Guatemala and the Workers’ group of the Governing Body. In this regard, she noted the efforts of the Government, particularly the establishment of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining and with the assistance of the Special Representative of the ILO Director-General, which contributed to the application of the Convention in practice. She also fully supported the request of the Committee of Experts that the Government investigate, without delay, all those allegations of violence and take rapid measures to ensure the adequate protection to trade union leaders and members. She commended the renewal of the mandate of the CICIG as a positive signal.

The Worker member of Spain, also speaking on behalf of the Confederation of Workers of Argentina (CTA Workers), the Confederation of Workers of Argentina (CTA Autonomous) and the General Confederation of Labour of the Argentine Republic (CGT RA), said that Guatemala had not allowed the Convention to be applied effectively since its ratification. The report of the Committee of Experts described some extremely serious events over many years that showed evidence of a resurgence. Reprehensible acts of violence against trade unionists, civil society leaders and rural workers, including 70 murders, were continuing with total impunity. Freedom of association was an inherent right in a democratic society, and civil liberties, especially respect for human life, were a vital prerequisite for the exercising of freedom of association. Losing that right would be detrimental to other civil guarantees concerning labour. There was an alarming gulf between law and reality in Guatemala. The Government must comply with the Committee’s conclusions. She recalled the conclusions of the missions and the supervisory bodies concerning the situation in the country, which observed the lack of progress and expressed profound concern. Murders were still occurring and there were systematic violations of civil liberties. Neither the rule of law nor democracy existed in the country. Collective bargaining was severely hampered by the actions of the State, which delayed the approval of collective agreements and prevented collective bargaining in the maquila sector. This ongoing policy of elimination of trade unionism needed to be seen in conjunction with the impunity of state and para-state forces, and with the ineffectiveness of the justice system, as almost no murders of trade union leaders had been solved. In conclusion, he proposed the creation of a special ILO permanent mission to monitor the situation, take action and assist the Government in its legal reforms and practice.

The Government member of the United States said that serious violations of freedom of association, including acts of violence against trade unionists, the need for the reform of the Labour Code and the lack of full respect of trade union rights in the maquila sector, persisted in Guatemala. While the Government had regularly informed the ILO supervisory bodies of its plans to bring law and practice into compliance with international standards, both the reports of the Committee of Experts and of the Governing Body indicated that this goal had not been achieved. The investigation and prosecution of murders and other acts of violence against trade unionists required additional and urgent action. Some measures had been taken to improve the effectiveness of investigations, but significant steps were still needed to identify and prosecute perpetrators of violence and to protect trade union members at risk. The enforcement of labour laws respecting the right to freedom of association and to collective bargaining remained inadequate. She expressed concern at the Government’s consistent failure to investigate effectively and sanction adequately anti-union retaliation. Measures had to be taken in this regard. Action was also needed to enforce compliance with court decisions, particularly in cases of anti-union discrimination and unfair dismissals in which the court had ordered the payment of back wages and reinstatement. The lack of protection for the right of workers to organize and to engage in collective bargaining had a negative effect on unionization, particularly in the maquila sector, in which there were only three active unions. She urged the Government to make all the necessary efforts to address these issues as a matter of urgency, and to provide information to the ILO on any steps taken. She looked forward to a review of the government report on the 2013 roadmap submitted to the Governing Body at its 324th Session (June 2015).

The Worker member of Honduras said that the Government, through acts of intimidation and repression which prevented the establishment of trade unions, was denying workers the right to organize as guaranteed by the Convention. He recalled that the Convention allowed the right to strike, but in Guatemala, persons who went on strike endangered their life and were subjected to threats and persecution, which were methods used to intimidate those who dared to exercise their rights. He hoped that the various interventions during the discussion would lead to action to ensure respect for freedom of association and the right to strike, in accordance with the Convention. He considered that ILO assistance had been important, but that the Government had not complied with all the recommendations made. He urged the ILO to establish mechanisms to guarantee good enterprise practices and the existence of trade unions and respect for union activities by workers’ representatives. The most sacred human right was the right to life and nothing could justify taking this right away from union leaders who defend labour rights and the improvement of the lives of workers.

The Employer member of El Salvador believed that the serious acts of violence that were occurring in Guatemala and El Salvador were mainly due to lack of appropriate government policies and the lack of coordination between the various public entities involved, including the police, prosecutors and the CICIG. These problems were also due to the lack of adequate training for judges, police inspectors and prosecutors, especially regarding the use of science and technology which, despite the progress made in recent years, were still not being used fully in Central American countries. He referred to the example of DNA analysis laboratories which, if they employed staff specialized in evidence gathering, could greatly contribute to reducing impunity. According to recent studies, more than 93 per cent of the most serious offences committed in Guatemala, Honduras and El Salvador were not solved by the authorities, which explained the lack of credibility of the criminal justice system. He shared the indignation of the Worker members that the murder cases discussed had still not been solved. Central American countries needed more effective security policies, and a better coordination between the police, prosecutors, judges and forensic science for the operation of the criminal justice system. This was particularly important as it affected private investment, and therefore job creation. He admitted that the case of Guatemalan trade union leaders was a problem that also affected the countries in the northern part of Central America. He supported the position of the Employer members that the report submitted to the Governing Body provided evidence that progress was being made in the investigations. As there was already a complaint under article 26 of the ILO Constitution regarding this case and the Committee for the Settlement of Disputes before the ILO was achieving positive results, he believed the case should continue to be dealt with by the Governing Body, rather than the present Committee.

The Government member of Belgium expressed concern at the climate of violence that prevailed in the country. Investigations into the murders of some 20 trade unionists had still not been completed and the situation of impunity persisted, as confirmed by the report of the CICIG which had been sent to the ILO. In addition, various legislative measures that had been announced, such as the protocol for the implementation of security measures, had not been adopted by the Government. Even though the case had been on the Committee’s agenda for a number of years, and despite the adoption of the roadmap in 2013, nothing suggested that sufficient progress had been made to bring an end to the killings and violence. One murder of a trade unionist was one murder too many and a climate of violence meant the absence of the rule of law. The Government needed to implement specific and determined measures to ensure observance of the Convention, which would be the subject of close scrutiny at the next session of the Governing Body in November 2015.

The Worker member of the United States indicated that there were two reasons why this case should be discussed by the Committee. The first reason was the number of murders of trade unionists in the country. The second was the ineffectiveness of governments in applying ILO standards to protect workers’ rights in the context of trade. The Central American Free Trade Agreement (CAFTA) concluded between Guatemala and the United States in 2006, required both countries to recognize and protect freedom of association and other rights included in the ILO Declaration on Fundamental Principles and Rights at Work of 1998. The Conference Committee had raised serious concerns regarding the application of the Convention in Guatemala before the entry into force of the CAFTA. The Committee on Freedom of Association had heard 25 cases regarding Guatemala. The Workers’ group had filed a complaint under article 26 of the ILO Constitution. However, Guatemala continued to receive trade benefits without demonstrating its compliance with the Convention. In 2008, the unions of Guatemala and the United States had filed a complaint concerning abuse of labour rights under the labour chapter of CAFTA. Since then, efforts to address the situation in Guatemala had been made through consultations and dispute settlement mechanisms under CAFTA. Evidence presented during this process had demonstrated systematic failure by the Government to enforce laws on freedom of association. A report by the United States Government Accountability Office, published in November 2014, documented violations of freedom of association in Guatemala, including: attempts to bribe union leaders to encourage them to quit their jobs and discourage workers from joining a union; firing workers for their union affiliation or for not disbanding unions; non-enforcement of relevant laws; inadequate budgets to investigate, prosecute and punish perpetrators of violations of freedom of association; and the failure to reinstate illegally dismissed workers. Virtually the same information had been sought under the ILO and the CAFTA mechanisms, but no sufficient evidence of progress on these violations had been provided by the Government under either process. Neither process had offered remedies to the workers concerned. In conclusion, he recalled that the instruments supervised by the Committee played a role in protecting rights outside the ILO and its supervisory mechanisms, and that ILO fundamental Conventions were increasingly being used to underpin agreements on trade and workers’ rights between member States, although they were failing so far to offer the hope of globalization with social justice.

The Government representative said that he had taken note of the points raised by the participants in the discussion. The country’s major structural problems had and would take time to resolve. All sectors would have to be involved, just as they would have to appreciate the positive side of the changes required by globalization and the technological era. Labour issues, which had been completely disregarded by previous governments, were no exception. The current Government intended to address those issues in a responsible manner, despite the difficult context and repeated complaints to ILO bodies, and would continue to follow up the issues that were being discussed in Committee, as well as others, with a view to improving the circumstances of the approximately 80 per cent of citizens who were not fully employed. The Political Constitution of Guatemala guaranteed freedom of association as a fundamental human and trade union right. That was why legal provisions had been adopted to ensure that freedom of association was respected, and it was the Government’s duty to establish the necessary safeguards. The reform of the Labour Code that increased the power to impose sanctions was currently before Congress, whose responsibility would be to adopt a text that was in line with the Constitution. The impact of measures guaranteeing the right to organize was visible. The functioning of the labour courts had improved and proceedings were now more rapid, in particular with respect to decisions to refer cases to the Office of the Public Prosecutor of persons who had not given effect to court rulings. In 2014 alone, 987 such decisions, and some 476 already in 2015, had already been made, which meant that those guilty of not giving effect to a court ruling might face penal proceedings. As a result of the protection measures introduced recently, trade union leaders now enjoyed protection, and there had been convictions in 58 cases of violent deaths of trade unionists. Examples included the murder of Luis Arturo Quinteros Chinchilla, who was not a trade union member, who had been attacked with a firearm during a fight in a car park, and Luis Ovidio Ortiz Casos, a union leader, murdered by a minor and two youths involved in criminal activities. The Government had the courage to take the action that was still needed, together with the other state bodies, in the hope that the social dialogue that had been developed in recent years would remain permanently. Finally, he announced that, in view of the total readiness of Guatemala’s workers to collaborate, a tripartite decision had been made to hold a tripartite meeting the next day with Conference delegates to address the issues under debate.

The Worker members said that they would have preferred not to have to address the murders of trade unionists, as that would mean that the Government had implemented all the conclusions of the supervisory bodies. They referred to the comments made during the discussion questioning whether dealing with this case in the Conference Committee and the Governing Body might undermine the supervisory system. The problem was that no real will had been shown by the Government in either body. There was no choice but to seek approval for the establishment of a Commission of Inquiry under article 26 of the ILO Constitution. In October 2013, the Worker members had agreed to give the Government one last chance and had agreed to the tripartite roadmap to address some of the issues raised by the supervisory mechanisms. Over 18 months had passed since then, and more than a year had elapsed since the deadline for compliance, but there had been no progress on the substantive issues. The time granted to Guatemala had now run out. Significant technical assistance, most recently for the judicial system, had been already provided. There had not been any political will by the Government to establish the rule of law, as demonstrated by the fact that high-ranking officials were involved in illegal activities. Trade unionists were being murdered and dismissed for their union activities. Labour inspection was not effective. The rare court rulings that upheld workers’ rights were ignored with impunity. There were no trade unions in the garment sector. This case could not be discussed for another 25 years. They urged the members of the Committee who were also members of the Governing Body to support the establishment of a Commission of Inquiry at the November 2015 session of the Governing Body. The Worker members further called for: the Government to implement the roadmap, including the amendment of the relevant legislation, and to accept the support of the CICIG to reopen investigations into crimes against workers and trade union members; the Government to institutionalize tripartite consultations on all matters covered by the Convention; and the representative of the Director-General in Guatemala to produce a detailed report on the implementation of the roadmap for discussion at the November 2015 session of the Governing Body. They called for the conclusions of the case to be included in a special paragraph of the report of the Conference Committee.

The Employer members, taking note of the different views expressed on developments in the situation in the country, considered that the ILO, through its special representative, should continue its process of observation, support and assistance so that the institutions could operate more effectively. In Guatemala, the institutional structure was adequate and confidence should be placed in the authorities, affording them assistance so that they had the necessary mechanisms. Noting that support for the CICIG would demonstrate the Government’s political will to make progress with the investigation of criminal acts committed against trade union members, the Employer members called for the work of the CICIG to be strengthened and supported the proposals made by the Worker members in that regard. They also emphasized the importance of pursuing social dialogue and strengthening bodies in order to arrive at joint solutions. In particular, the Committee for the Settlement of Disputes under the ILO should be strengthened and that the experience of other countries could be useful in that respect. In addition, progress should continue to be made on all the elements of the roadmap, taking into account the observations and comments already made by the Employer members in their first intervention. The Office of the Public Prosecutor should also take decisive action to ensure that investigations were carried out more rapidly and progress should be made on coordination through inter-ministerial agreements, leading to concrete results on the investigation of crimes. The protection of trade union members should be ensured by allocating the necessary resources. It was also important to continue with the programmes for investigators and prosecutors with a view to facilitating investigations in these areas. With respect to legislative issues relating to the right to strike, the Employer members indicated that these issues should be addressed by the competent body in accordance with Guatemalan domestic legislation, and hoped that the most appropriate mechanisms could be found through social dialogue. As the questions raised were being addressed in the context of the various cases that were before the Committee on Freedom of Association, and that they would be discussed in the next session of the Governing Body, the Employer members considered that it should be for the Governing Body to decide on the best approach to be adopted.

Conclusions

The Committee took note of the oral information provided by the Minister of Labour and Social Protection on the issues raised in the Report of the Committee of Experts and the discussion that followed.

The Committee observed that the issues raised by the Committee of Experts principally related to: (i) numerous murders of, and acts of violence against, trade union leaders and members and the need for these events to be properly investigated and punished and for rapid and effective protection to be given to trade union leaders and members at risk; (ii) the need to bring various aspects of domestic legislation into conformity with the provisions of the Convention, including the requirements for forming industrial trade unions, the conditions for election as a union leader, and the exclusion of various categories of public sector workers from enjoying the right to organize; and (iii) recurrent comments from trade union organizations denouncing, on the one hand, the practices of the Ministry of Labour and Social Protection, which allegedly made it difficult to register trade union organizations freely, and, on the other, serious problems with the application of the Convention in relation to trade unions’ rights in the maquila sector.

The Committee took note of the Minister of Labour’s emphasis on the Government’s commitment to decent work and freedom of association, as could be seen in the following results related to the application of the Convention: (1) the Unit for Crimes against Trade Unionists of the Office of the Public Prosecutor was now centralizing the investigation of all such cases (70 in total); (2) a general instruction on investigating and prosecuting these crimes had been agreed between the Office of the Public Prosecutor and a technical group from the trade union sector and was now in effect; (3) of the 58 cases of violent death under investigation, convictions had been handed down in eight and ten arrest warrants had been issued in other cases, while an arrest warrant had been requested in one further case; (4) in Guatemala, as in other countries in the region, there was a problem with criminality and violence affecting the population in general; (5) the Office of the Public Prosecutor and the International Commission against Impunity in Guatemala (CICIG) had signed a collaboration agreement in 2013 to build investigation capacity; (6) from an examination of 56 criminal cases, it appeared that a significant number of victims were not members of trade union organizations and that in the majority of cases the motives were unrelated to trade unionism (gang related, extortion, etc.); (7) 25 requests for protection of trade unionists had been submitted under the protocol for the implementation of immediate preventive security measures to protect human rights defenders in Guatemala; (8) an emergency telephone line had been set up to deal directly with threats of violence against trade unionists; (9) at present, failure to abide by court rulings could give rise to criminal proceedings and hundreds of breaches had been reported; and (10) Congress was seeking to strengthen the power of the labour inspectorate to impose penalties for labour violations. In addition, tripartite dialogue had been strengthened. In that regard, a Special Committee on the Handling of Conflicts referred to the ILO in the areas of freedom of association and collective bargaining had been set up and begun examining cases. In addition, the Government had submitted draft legislative reforms to the country’s tripartite body relating to the comments of the Committee of Experts. When an agreement had not been reached, the draft, including the comments of the social partners, had been transmitted to Congress. The Guatemalan tripartite delegation had agreed to meet during the Conference to address all the above issues at once and make progress. Lastly, he expressed appreciation for the technical assistance and training for public institutions provided by the Special Representative of the ILO Director-General in Guatemala and requested that the Special Representative’s office be strengthened.

Bearing in mind the discussion, the Committee requested the Government to:

• take note of the Committee’s regret at the murders of unionized workers referred to in the observation;
• apply the roadmap to combat violence and impunity, and in particular, to: (i) reach an agreement with CICIG on investigating cases of trade union deaths with a view to arresting and charging those responsible, including the instigators; (ii) strengthen the Unit for Crimes against Trade Unionists; (iii) guarantee that meetings of the Trade Union Round Table for Comprehensive Protection would be held, with the participation of the social partners; (iv) reinforce the programme to protect trade unionists and allocate additional financial resources to cover all leaders requiring protection; (v) guarantee the application of the Framework Agreement for cooperation among the various international agencies in order to facilitate exchange of information on crimes against trade unionists; (vi) ensure that investigators and prosecutors within the Public Prosecution Services receive training, in collaboration with the ILO; and (vii) guarantee the functioning of the emergency telephone line set up in May 2015 for submitting complaints of failure to respect freedom of association;
• institutionalize participation by the social partners in formulating policy within the various social dialogue bodies, particularly the Economic and Social Council, the Tripartite Commission on International Labour Affairs and the Special Committee on the Handling of Conflicts referred to the ILO, in order to find solutions to problems arising in practice on labour matters, and, in consultation with the most representative workers’ and employers’ organizations, prepare a bill based on the comments of the Committee of Experts and submit it to Congress as a matter of urgency and bring domestic legislation into conformity with the Convention, as stipulated in point 5 of the roadmap; and
• continue activities with the Special Representative of the ILO Director-General, with technical cooperation support, so that the Special Representative can prepare a report on the implementation of the roadmap, to be submitted to the Committee of Experts at its next meeting and to the Governing Body before its November 2015 Session.

The Committee requested the ILO to continue supporting the Office of the Special Representative of the ILO Director-General in Guatemala.

The Government representative took due note of the conclusions. He reiterated the commitment made by the Minister of Labour who stated that the Government will continue to follow up on these issues with due consideration.

Individual Case (CAS) - Discussion: 2013, Publication: 102nd ILC session (2013)

The Government provided the following written information.

The concerns which had been expressed by the Committee of Experts for a number of years were shared by the Government which had taken office in January 2012. In order to address such issues, specific actions had been implemented with a view to producing changes in the management of labour matters. In its 2013 report, the Committee of Experts had noted that the Government had reported progress in the following areas: the implementation of the new national policy on secure, decent, high-quality employment and of the ongoing policy on social dialogue; the strengthening of the Ministry of Labour and Social Security in budgetary, regulatory and institutional terms, including increasing the coverage of the general labour inspectorate; the signature of an agreement between the Public Prosecutor’s Office and the International Labour Standards Department of the ILO concerning subjects of relevance to the supervisory bodies; the strengthening of national tripartite dialogue, the first result of which had been the signature of the Memorandum of Understanding relating to the implementation of the ILO Technical Cooperation Framework: Decent Work Programme for Guatemala; the coordination among State institutions to give priority to dealing with complaints concerning acts of violence against trade unionists and impunity, which regrettably also affected the whole population; the application of the protection mechanism to trade unionists who request it; the participation of the Public Prosecutor’s Office in the Inter-Institutional Labour Commission and the Tripartite Committee for International Labour Affairs; and the reinforcement of the investigation capacity of the Public Prosecutor’s Office by increasing staff numbers and establishing working methods for resolving cases involving acts of violence against trade unionists. The Committee of Experts had also welcomed in its report the following information supplied by the Government: the re-establishment of the special prosecution service for investigating offences against trade unionists; the conclusion of a cooperation agreement between the Public Prosecutor’s Office and the ILO, with initial action already taken to train prosecutors with regard to typical scenarios of anti-trade union violence and the factors behind such violence; and the inclusion in the National Tripartite Commission of trade union federations and confederations which had been excluded in the recent past.

Further to the report of the Committee of Experts submitted to this session of the Conference, the Government had taken steps to resolve the majority of the issues raised by the Committee of Experts, including the following: the streamlining of the procedure for the registration of trade unions, reducing the time taken for such registration from 226 to 20 working days; the establishment of a monthly working group with the participation of the Prosecutor General and trade union representatives, to keep them informed of the progress made in cases involving acts of violence which were under investigation and to record all important information which came to the attention of the Prosecutor General; the discussion of a draft cooperation agreement between the Public Prosecutor’s Office and the International Commission against Impunity in Guatemala (CICIG); the issue by the Public Prosecutor’s Office of a general instruction to regulate criminal prosecution in the event of non-compliance with rulings handed down by labour and social security courts; ILO technical assistance to the Public Prosecutor’s Office relating to the exchange of positive experiences with countries in the region in order to tackle anti-union violence and amend existing legislation with a view to improving criminal prosecution; meetings with the main trade union leaders of Guatemala, the Ministry of Labour and the Ministry of the Interior in order to reach decisions and take action in the quest for solutions to problems affecting the trade unions; the issue by the Ministry of the Interior of the ministerial agreement concerning the inclusion of the Standing Trade Union Technical Committee on Comprehensive Protection with a view to implementing public policies for the protection of trade unionists, based on processes for prevention and comprehensive protection, with the direct presence of trade union leaders and the Higher Office of the Ministry of the Interior; the presentation of the Labour Sanctions Bill, which amends the Labour Code, for adoption by the National Congress; the issue by the Ministry of Labour of the ministerial agreement containing instructions to deal with cases involving the closure of enterprises without appropriate payments to the workers, which would prevent such situations and strengthen the labour inspectorate; budget increases and reinforcement of the investigation capacity of the Public Prosecutor’s Office in order to combat impunity; the full operation of the judiciary’s Centre for Labour Justice, bringing together in a single physical space the relevant courts and administrative units; the significant reduction in the average time and duration of judicial proceedings from 19 to six months on average; the full operation of the unit for the implementation and verification of reinstatement orders and special labour procedures, which monitored due compliance with court rulings in order to ensure the restoration of workers’ labour rights; the establishment of the Economic and Social Council, which included representatives of Employers, trade unions and cooperatives; and discussion in the Tripartite Commission of the recommendations on judicial reform made by the Committee of Experts to agree on the action to be taken with a view to referral to the National Congress.

The Government would continue to make every effort to resolve the issues that were still pending and to implement the Committee of Experts’ recommendations, which were the issues behind the submission by a number of Workers’ delegates to the 101st Session of the Conference of a complaint under article 26 of the ILO Constitution, which was before the Governing Body. Accordingly, the Government of Guatemala had reported periodically to the Governing Body on progress made. Furthermore, the Governing Body had been informed of the signature, on 26 March 2013, of a Memorandum of Understanding between the Government and the Workers’ group of the Governing Body, on the basis of which tripartite measures would be taken to ensure the full observance by Guatemala of the Convention. Such measures were intended, inter alia, to prevent acts of violence against trade unionists, create conditions to ensure that the latter can work in a favourable environment and also strengthen the justice system, all with ILO assistance. The Government had requested the Office to establish quickly high-level tripartite representation in the country, as stipulated in the above instrument, and it would do its utmost to continue implementing its provisions, on a tripartite basis and with ILO support, in order to achieve the full and effective application of the Convention in the country.

In addition, before the Committee, a Government representative stated that since the current President of Guatemala had been elected, the Government had been engaged in a sustained process of ensuring full compliance with national legislation, international Conventions and fundamental labour principles. The many efforts of national tripartite dialogue and international contacts in recent months had resulted in the signing of two particularly relevant documents: the Memorandum of Understanding concluded in March 2013 between the Government and the Workers’ group of the ILO Governing Body; and the good faith agreement between the Government and that of the United States which brought to a close the dispute that the latter had initiated under the Dominican Republic–Central America-United States Free Trade Agreement (CAFTA–DR). The two agreements, which were complementary, constituted a roadmap for an agreed long-term solution to the problems besetting labour relations in Guatemala. The agreements had been endorsed by the social partners in the Tripartite Committee for International Labour Affairs and had opened up a historical process of social dialogue. In practical terms the implications of the agreements were of transcendental importance for the long-term resolution of the conflicts, which had been made possible in Guatemala. Among such consequences, he stressed the creation of a sub-committee within the Tripartite Committee and the fact that the mentioned committee had decided to address the negotiation and follow-up of international agreements with a scheduled working programme. He emphasized that the Government regretted and condemned the crimes that had been committed against union leaders, against their headquarters and against both unionized and non-unionized workers and that it had taken steps through the General Prosecutor’s Office to step up its investigation into the identity of the perpetrators and to have them brought to trial. Suspects had been arrested in connection with the recent murder of Ovidio Ortiz and Carlos Hernández. Better and more effective protection had been granted to union leaders who had requested police protection, a strategic alliance had been promoted between the General Prosecutor’s Office and CICIG to ensure the independent investigation of crimes, and inter-institutional cooperation machinery had been set up between the Public Prosecutor, the Ministry of Interior and the trade union organizations to shed light on crimes against union leaders.

As to the legislative aspects of the case, a consensus had been sought by the Government within the framework of the National Tripartite Commission to amend the legislation, but without success. In fact, the National Tripartite Commission had refused to inform Congress on the matter. Although the executive had the authority to present proposals for reform to the legislature, it had been deemed more prudent to abide by the recommendations of the National Tripartite Commission on respect for and the strengthening of social dialogue. Regarding the register of trade unions, the procedure that had recently been introduced made it possible for registration to be completed within the 20 working days provided for in the legislation. As to the Committee of Experts’ request for detailed statistics on the number of existing trade unions by economic sector, notably in the export processing sector (maquilas) and in the public and private sector, and on the number of collective accords that had been concluded, the Government was actively engaged in their compilation, for which it was seeking the ILO’s technical assistance. Finally, the Government representative thanked the Office and the Director-General for their contribution to the mission of the Director of the International Labour Standards Department that had taken place in February 2013 upon request of the Government and for the high-level tripartite mission that was shortly to visit Guatemala which would give assistance on mediation and the agreements signed. He was certain that the two missions would contribute to furthering and enhancing the Government’s efforts. The Government representative indicated that his presence during the examination of this case was proof of his Government’s commitment and political will, although this case was also being examined in the context of a complaint under article 26 of the ILO Constitution, which meant there was a double procedure in this regard. He expressed the hope that the conclusions of this Committee would contribute to the efforts already undertaken by Guatemala with the support of the international community and the ILO, including through the implementation of the Memorandum of Understanding of 26 March 2013. He requested the ILO’s support to ensure a positive outcome to the efforts already undertaken.

The Worker members observed that the case appeared in the list of individual cases this year further to the agreement reached between the Worker and Employer members of the Committee to examine all the “double-footnoted” cases from the 2012 report of the Committee of Experts, which it had not been possible to discuss the previous year. Briefly summarizing the background to the case, they recalled that: the case had been examined by the Committee on 14 occasions; further to a discussion in the Committee concerning the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the high-level mission which had visited Guatemala in April 2008 had also examined issues relating to the application of the Convention, which had resulted in the National Tripartite Commission adopting an agreement aimed at eliminating anti union violence, improving and modernizing the legislation and ensuring better application of Conventions Nos 87 and 98; in 2009, a mission comprising the Employer and Worker spokespersons had visited the country to assist with efforts to find sustainable solutions to all the issues raised, in accordance with the request made by the Committee in June 2008; a new high-level mission had visited the country in 2011; in 2012, a complaint had been submitted against the Government of Guatemala under article 26 of the ILO Constitution for violation of the Convention; at the request of the highest State authorities, an ILO mission had visited the country from 25 February to 1 March 2013; a Memorandum of Understanding had been signed on 26 March 2013 between the Government and the Workers’ group of the ILO Governing Body, in the presence of the ILO Director-General, with a view to deferring the decision of the Governing Body to establish a commission of inquiry. The Memorandum of Understanding was a positive sign and the Committee should encourage what had been set in motion by the Governing Body. It was now important to give the Government a chance to honour its commitments.

The Employer members noted the Government’s full willingness to submit information on the measures it had adopted, and of the comments of the Worker members. The case under examination was being considered by different monitoring bodies at the same time. While it was a “double-footnoted” case, which is why it had been included in the list of cases before the Committee, the situation had changed drastically since the Committee of Experts had last examined it, as a complaint had been submitted under article 26 of the Constitution. It should be recalled that the situation of Guatemala had been examined at the last meeting of the Committee on Freedom of Association within the framework of five specific cases, three of which had been considered to be serious and urgent. The Governing Body would examine both the report of the Committee on Freedom of Association and the analysis of the complaint under article 26 of the Constitution. The observation of the Committee of Experts made reference to a wide range of issues which could be grouped into four clusters: the complaint under article 26 of the Constitution, the situation of violence, legislative problems and other matters including the maquilas, the national tripartite commissions and statistical matters. As for legislative issues related to the right to strike, they referred to the 2012 discussions in which they had indicated that the Committee of Experts was not competent to interpret Conventions and that Convention No. 87 did not address the right to strike. They recalled that a high-level mission had been conducted in 2011, and they highlighted the written information that the Government had provided on the measures adopted further to the mission’s recommendations. They particularly emphasized the measures that had been adopted to expedite the registration of trade unions, to speed up court proceedings and to set up the Economic and Social Council. They also referred to the measures adopted with regard to the Memorandum of Understanding that had been signed in March 2013. They emphasized the measures to strengthen the legal system, and particularly to shed light on acts of violence. Swift and specific judicial investigations were needed to identify and punish the perpetrators and ensure that the same acts were not committed again in the future. They highlighted the importance of continued technical assistance from the Office. They noted with interest the Government’s decision to accept a new high-level mission and hoped that it would take place without delay.

The Worker member of Guatemala recalled that in 2012 the workers had presented a complaint under article 26 of the Constitution in view of the murders, attacks, harassment and threats involving union leaders, the lack of tolerance by both public and private employers of trade unions and the failure to comply with national and international standards, and particularly the present Convention. The presentation of the complaint had provided the occasion for the Government to take a number of political and diplomatic steps that had resulted in the signing of a Memorandum of Understanding with the Workers’ group and the Office. Guatemalan workers endorsed the Memorandum of Understanding, which gave the Government six months, from April to October 2013, to draw up and implement the operational plan that was currently being validated by the Tripartite Committee on International Labour Affairs. However, the Memorandum did not resolve structural problems and the anti-union policy continued to remain in place. For employers and some public officials, the best trade union was no trade union at all. New unions could not be established in the production and public service sectors, at either the national or municipal level. Workers who decided to organize in accordance with national and international legislation were immediately dismissed. Employers disregarded warnings and refused to comply with judicial rulings ordering them to reinstate dismissed workers immediately and to respect the trade union rights were denied. The executive, the judiciary and the legislative authorities were jointly responsible for the situation, as they did not enforce the law or comply with their obligations. At a time when the world was watching the historic trial of Guatemalan generals for genocide and crimes against humanity, trade unionists, indigenous peoples, women and human rights activists were being persecuted in ways that brought back memories of the atrocities perpetrated during the 1980s. And while “development” projects were imposed on the country without consulting or seeking the consent of those concerned, causing the displacement of families, the disruption of public services and the contamination of natural resources, the indigenous peoples and peasant communities were once again fighting economic and social inequality and to demand that their own view of development be respected. As the movements grew, so too did the violence used against them. Trade union and community organizations that rejected development policies found themselves accused of terrorism and treated as a national security threat. Their members were subjected to defamation, threats, kidnapping, attacks and extrajudicial execution, while others were imprisoned under trumped‑up criminal charges. The year 2013 had seen the assassination of Joel González Pérez, Juan Martínez Matute, Carlos Antonio Hernández, Santa Alvarado, Kira Zulueta Enríquez and Mayro Rodolfo Juárez Galdámez, and the murder of Luis Ovidio Ortiz Cajas over a year earlier had still not been elucidated. It was an urgent to implement labour relations policies that contributed to the development while at the same time respecting the right of all workers to organize freely and to bargain collectively. In conclusion, he condemned the violence that union leaders and trade unionists faced, along with their families.

The Employer member of Guatemala indicated that he considered it was inadequate that this Committee was dealing with the present case in the current circumstances, in which a whole process was under way to seek solutions to the problems identified by the Committee of Experts, and which was based on the Memorandum of Understanding signed by the Government and the Workers’ group at the last meeting of the Governing Body, as a follow-up to the complaint brought under article 26 of the ILO Constitution. He also recalled that the Committee of Experts had taken into account the progress made in recent years and the information submitted by the Government, in particular with regard to the issues of most concern during the present discussions, namely the violence affecting both union leaders and union members. He indicated that the Tripartite Committee for International Labour Affairs had been informed by the responsible persons of the Public Prosecutor’s office of cases mentioned in the report of the Committee of Experts. It was positive that there was a high percentage of cases with final sentences and cases in which the investigations had sufficiently advanced to expect results shortly. In this regard, he reminded the discussions in the Committee on other occasions on the violence that had affected the whole population of Guatemala. He expressed concern at the fact that it seemed that it was concluded a priori that in most cases the violence was motivated by trade union activities. He emphasized that the employers were the first to call for the investigation of crimes and for the perpetrators to be severely punished. Another aspect that should be noted positively was the progress that had been made in strengthening the institutions responsible for enforcing respecting trade unions, and particularly the general labour inspection and labour courts. The allocation of specific resources had resulted in capacity building and the recruitment of labour inspectors, who had been accused in the past of inefficiency and corruption. Moreover, the number of labour tribunals and the human resources available had increased. Even more important, judicial procedures had been considerably improved. Emphasis should be placed on the efforts made with regard to social dialogue in the Tripartite Committee for International Labour Affairs and the Economic and Social Council. These national bodies were responsible for following up the issues raised by the Committee of Experts and the Conference Committee. Some of these issues had also been recognized by the Government and the Workers’ group in the Memorandum. He emphasized the commitment of the employers to pursue tripartite dialogue and to come up with solutions to the problems raised. He invited all the social partners to participate constructively in the whole process and to give up their sectoral positions, which were not conducive to finding solutions to the problems and obstructed fluid and effective social dialogue. He recognized that of the many problems faced by the people of Guatemala, one was to create decent work and sustainable companies, which was the only way of generating wealth and tackling the problem of informal employment. He emphasized the need to continue the fight against corruption and to guarantee the effective application of the Labour and Penal Codes by the Supreme Court of Justice and the Office of the Public Prosecutor. National authorities were striving to strengthening solutions through dialogue with a view to creating jobs under decent conditions. In conclusion, he was aware that solutions needed to be found and hoped that they could be achieved in the medium term. He urged the Committee to contribute to the national efforts that were being made and recalled once again the important progress that had already been made.

The Government member of Colombia, speaking on behalf of the Government members of the Committee which were members of the Group of Latin American and Caribbean Countries (GRULAC), acknowledged the Government’s efforts to take practical steps on labour matters and particularly the adoption of a Decent Work Programme 2012–15 and its implementation plan, with the objectives of promoting and complying with fundamental labour standards, improving the judicial system, respecting freedom of association and collective bargaining and taking action against impunity. She highlighted the high-level mission that had taken place in February 2013 and the Memorandum of Understanding on the application of the Convention signed in March 2013. In that regard, she drew attention to the measures that the Government had taken since the adoption of the Memorandum, particularly the launching of a tripartite dialogue process with a timescale and programme for implementation. She also emphasized the progress made by the Office on measures to establish high-level tripartite representation, as agreed in the Memorandum. She expressed the hope that the Government and the social partners would continue taking action to apply the Memorandum, with ILO assistance, with a view to making progress in applying the Convention. In conclusion, she expressed concern at the simultaneous use of multiple mechanisms to deal with the same case, considering that such duplication could weaken the functioning of the ILO supervisory system.

An observer representing the International Trade Union Confederation (ITUC), referring to the murders of 58 trade unionists over the past six years, expressed regret that none of them had been solved and that the Government claimed that only two of them involved anti-union motives, despite the fact that investigations were still continuing. Seven workers had already been murdered in 2013. He referred to the situation of persecution, threats and harassment suffered by trade unionists and the dismantling of trade unions, giving specific examples from the maquila and public sectors. Despite the fact that the judicial authorities had ordered protection measures for union leaders and members, they had yet to be taken. He hoped that the Memorandum of Understanding might be the first step towards solving the country’s problems, highlighted the commitment of trade union confederations to the Memorandum and expressed regret that it had not been signed by the employers. Guatemala had been declared the most dangerous country in the world for trade unionists. The Government therefore needed to demonstrate that it was taking real action on the issue.

The Government member of the United States referred to the enforcement plan agreed with Guatemala to solve the concerns raised in a labour case brought by the United States against the Government under the CAFTA–DR. The enforcement plan consisted of 18 concrete actions to improve enforcement of labour laws to be implemented within specific time frames. She said that, if fully implemented, it would address some of the same issues dealt with by the Committee of Experts, the Committee on Freedom of Association and the Conference Committee. She also referred to the recently signed Memorandum of Understanding and her Government was encouraged that the Guatemalan Government had acknowledged the challenges it faced in effectively enforcing its labour laws and protecting workers’ rights, and looked forward to their continued collaboration to address labour right concerns. However, she expressed deep concern at the continuing violence against trade unionists, the high levels of impunity and the on-going challenges in the criminal justice system. The Government of Guatemala was urged to fulfil its commitments within the established time frames under both the enforcement plan and the Memorandum of Understanding and to ensure as soon as possible the conformity of national law and practice with the Convention. Her Government was prepared to work closely with the Government of Guatemala in taking the concrete and sustainable measures required in this regard and urged the Government to make full use of ILO technical assistance and advice and to actively involve the social partners to ensure full respect for freedom of association for all workers in Guatemala, a right that in too many instances had been denied to Guatemalan workers for a very long time.

The Employer member of Honduras stated that, in the light of the developments that had taken place in the country, it was not necessary to examine the case before this Committee. The Government should be given time to implement the measures it had pledged to take. The Governing Body would examine the report of the country mission, which contained information on the Government’s achievements that clearly indicated its desire to solve the problems. The violence in the country was general in nature and the Government and the employers recognized the need to take measures in that regard.

The Employer member of Mexico stated that the examination of a single case by several bodies went against the principle of judicial safety and proposed that this Committee should not examine the matters covered by the complaint submitted under article 26 of the Constitution. He emphasized that the problems presented were being addressed at the national level within the framework of the Tripartite Commission, which demonstrated the increase in social dialogue. It was also important to highlight the re-establishment of the Office of the Special Prosecutor to investigate crimes against trade unionists. He hoped that the work of the Tripartite Commission would help to determine the real causes of the violence and whether it was directed particularly against unionists.

An observer representing Public Services International (PSI) expressed deep concern at the situation of impunity and violence against trade unions in Guatemala. The anti-union culture was frequently demonstrated and had recently become more serious. Trade unionists were threatened, attacked and murdered. She referred to the murders of Ms Kira Henríquez and Ms Santa Alvarado and stressed that women trade unionists were also victims of violence. She called for an end to the rise in violence and for fundamental principles at work and human rights to be observed. Social dialogue had to be re-established in a climate of social justice. Lastly, she referred to the difficult situation of public employees, in particular those performing special or temporary assignments who, even if they were in permanent posts, did not receive equal wages or enjoy the same social security coverage. High-quality public services were essential to the existence of social dialogue in the country.

The Worker member of the United States recalled that, under the terms of the CAFTA–DR, Guatemala was required to comply with its obligations as a member of the ILO, including the obligation to recognize and protect the rights set out in Convention No. 87 and other ILO standards. In 2008, unions from Guatemala and the United States had filed a petition calling for the investigation of labour abuses under the labour chapter of the CAFTA–DR. He added that the ILO supervisory bodies played a vital role in the supervision of those standards, which were becoming increasingly important as they were used in the binational and multilateral agreements that were key to international trade and industrial relations in multinational companies. After reviewing the petition, the United States Government in 2009 had reported finding significant weaknesses in labour law enforcement in Guatemala and, following the holding of consultations, had requested the establishment of an arbitral panel in 2011. However, despite the repeated failure of the Government to take sufficient action to remedy the continuous and systematic failure to protect fundamental workers’ rights, it had been granted yet another reprieve in April 2013, when the United States had suspended the arbitral panel and negotiated a comprehensive enforcement plan with the Government. Since the filing of the petition, over 50 trade unionists had been killed in Guatemala and there were many doubts that another action plan would bring about real changes in law and practice, or the allocation of sufficient resources to improve compliance with the Convention. Moreover, although ambitious, there were numerous shortcomings in the plan, which failed to take into account the critical needs expressed by Guatemalan workers. The shortcomings included the failure to address union registration, including the 45-day deadline set out in the Labour Code, the question of impunity for violations of labour law, as well as illegal subcontracting, the non-payment of social security contributions, widespread minimum wage violations, factory closures and the accurate legal registration of factory ownership and assets. Nevertheless, despite the many criticisms, the commitments made would be taken very seriously by the trade union movement, with particular regard to the provisions on transparency and tripartite coordination for enforcement, which explicitly referred to the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). In conclusion, he emphasized that the enforcement component of the plan needed to include the real possibility of returning to the CAFTA–DR labour dispute mechanism for violations of labour rights before the next session of the Conference.

The Worker member of Spain, also speaking on behalf of the Worker members of Belgium, France, Greece, Italy, Portugal and Sweden, commended all the workers and members of the general public who risked their lives every day to uphold the rule of law in Guatemala, a country which was incapable of guaranteeing the right to life. Carlos Castresana, the former head of the CICIG, had described the Guatemalan authorities as a patient who was refusing to take the recommended medicine to solve the serious problems of insecurity and injustice that were destroying the country. That diagnosis was particularly apt in labour matters. Guatemala had not respected the principle of good faith in relation to international treaties, as could be seen from its repeated violations of the fundamental Conventions. The following restrictions still applied with regard to Conventions Nos 87 and 98: the restriction on the freedom to form organizations; delays in registration or the refusal of registration; restrictions on the right to elect union leaders in full freedom, including the requirement for them to be of Guatemalan origin; restrictions on the right of trade unions to carry out their activities freely, including the possibility of imposing compulsory arbitration, among other sectors, in public transport, and the imposition of penalties, including criminal sanctions, in the event of a strike by public servants or workers in certain enterprises; the denial of trade unions’ rights in practice for numerous public sector workers engaged under contracts under budget item 029; deliberate delays in reinstating dismissed trade unionists; and restrictions on freedom of association and collective bargaining in the maquila sector. He regretted that no progress had been made on the repeated and long-standing calls for reform in the country. The significant restrictions outlined above were compounded by the climate of extreme anti-union violence, the ineffective justice system and the failure to protect trade unionists, which made exercising the right to freedom of association much more dramatic. Although violence was widespread across the country, the denial of the anti-union nature of most murders of trade union leaders was a smokescreen to hide the obvious: the existence of an institutionalized anti-union culture that did not baulk at murdering trade unionists to instil terror and fear in those exercising trade union rights. In Guatemala, whatever attempts were made to pass off the murders of trade unionists as ordinary crimes resulting from the situation of general insecurity, the State was still responsible for its own lack of diligence in investigating the facts and for failing to prevent such incidents from occurring. In other words, it was responsible for its failure to fulfil its duty to guarantee trade unionists the right to life.

The Worker member of Colombia said that the situation of the violation of human and trade union rights in Guatemala had existed for years and, despite the efforts of the trade union movement to avoid elimination, it had proved impossible to resolve. Indeed, on the contrary, there had been a constant increase in acts of violence in the form of murders, threats and harassment, which meant that the exercise of trade union activities in Guatemala had become the most dangerous of occupations, paid for in life, with such violence becoming more widespread in Latin America. The Committee of Experts had repeatedly asked the Government to take prompt and effective action to ensure the full observance of human and trade union rights, and especially that murder cases should be investigated and the perpetrators prosecuted and punished in accordance with the law. But since no such action had been taken in practice, the number of trade union leaders who had been murdered since 2007 now stood at 58, and those responsible for such appalling crimes had not been identified. Impunity reigned in Guatemala, and the Government showed absolute indifference to the fate of trade unionists. The results spoke for themselves: to date, nobody had been tried or even charged for the crimes, despite grave suspicions against certain persons as the instigators of the murders. The prevailing situation of impunity was very serious, as it paved the way for other murders, with criminals being fully aware that they could go calmly about their business, as there were no authorities or judges ready to prosecute, arrest or convict them. He added that some individuals who had been prosecuted and convicted for such crimes against humanity had subsequently had their convictions overturned and were now at liberty. Responsibility had also been ascribed to others to conceal the identity of the true perpetrators of the crimes. The impunity rate was virtually 100 per cent, with the aggravating circumstance that there was deliberate intent on the part of certain government officials to distort the true motives for the killings, claiming grounds other than trade union activity for the deaths, which was a further violation since, in addition to the loss of their lives, it stripped the victims, and also their families and colleagues, of their honour and dignity. The ILO now had a major responsibility to determine the appropriate measures to help put an end to such a grave situation of violence against the trade union movement, since such deeds were a continuation of what had been happening elsewhere in Latin America, including in his own country, Colombia. Wherever that occurred, there was a lack of democracy and social justice.

The Worker member of Brazil said that in Latin America even the most progressive governments were overlooking the fact that the Government of Guatemala was allowing its trade union leaders to be murdered. There was a popular saying that silence implied consent. To bring an end to the killings of trade union leaders, agreement was needed between governments to establish an observatory and to follow up violations of trade unions rights, and particularly murders. In the midst of this barbary, the ITUC had promoted an agreement with the Government of Guatemala to bring an end to the murder of trade union leaders once and for all, and also to restore trade union rights and strengthen labour rights. He called on all governments and countries to open their eyes to the murders and to halt the genocide of workers and their organizations. They needed to help the Government of Guatemala to maintain stability and defend the right to life and safety of trade union leaders and their organizations. Everyone should join in that effort.

An observer representing the International Organisation of Employers (IOE) emphasized the importance of the Conference Committee taking into account the processes that were under way in Guatemala to improve the situation, as well as the existing cooperation programmes. The Memorandum of Understanding concluded between the Government of Guatemala and the President of the Workers’ group, in parallel to a session of the Governing Body, demonstrated a willingness that should be appreciated. Formal issues appeared to be preventing the adhesion of the Employers’ group to the agreement, but it was prepared to collaborate actively in its development. That willingness did not deny or mask the gravity of the issues of violence, which required urgent investigation, within a climate of generalized violence in certain areas of the country. The employers were aware of that and wished to show their active commitment to improving the situation in Guatemala. The ILO supervisory system needed to promote effectively the achievement of progress and the active involvement of the Government and the social partners. That was important not only in relation to the examination of the present case, but also its content. That commitment would need to be taken into account in future if significant progress was achieved.

The Government representative emphasized the notion of process that pervaded the current debate. His country had for many years been experiencing a situation that could be characterized as a sustained process of omission in the construction of democratic institutions capable of ensuring legality and the rule of law in Guatemala. Over the previous 15 months, under the Government of President Otto Pérez Molina, there had been a sustained and substantive effort to build democratic institutions that guaranteed the full realization of the rights of Guatemalans, the right to life, to physical integrity and to public freedoms, such as the right to freedom of association. Since taking office, the Government of Guatemala had been making substantial budgetary changes to strengthen two institutions and send a clear message of political will: it had increased the budget of the Ministry of Labour by 36 per cent and that of the Office of the Public Prosecutor by over 20 per cent, and was spearheading the process of strengthening institutions and reinforcing labour inspection services. That was of the utmost importance, as labour inspection was one of the democratic institutions that had never been established in Guatemala with the clear intention of ensuring compliance with the rights of all Guatemalans in every corner of the country. By the end of 2012, the Ministry of Labour had executed 98.4 per cent of its budget, having hired 100 new inspectors, which had increased the Ministry’s staff by 40 per cent; it had strengthened its coverage to the whole of the country; there had been a paradigm shift in inspection from conciliation to inspection visits and now, from 600 visits a year up to 2011, its capacity had increased to 3,300 company inspections to monitor compliance with fundamental rights.

There had been a strong and clear commitment to social dialogue, to call things by their name and to recognize leadership by trade unions and employers in both law and practice. All matters of national importance were discussed in the Tripartite Committee for International Labour Affairs, where all the people of Guatemala were represented. There was a compelling need to adopt measures in Guatemala on many issues, but it was important to allow time for social dialogue to run its course in order to fulfil commitments in the long term and in a sustainable manner. There had clearly been a policy of institutional strengthening. The process included reinforcing the national police, improving the professionalism of its officers and ensuring clarity in the dialogue between the security forces and the leaders of the various trade union federations and confederations. The foundations were being laid for the active participation of the trade union movement and employers in the examination and elucidation of cases. The Memorandum of Understanding signed in the ILO between the Government of Guatemala and the Workers’ group was an unusual event, unprecedented in the history of the Organization in terms of the resolution of serious conflicts that had occurred in many countries. But the seeds had been sown during the meeting at the Davos Summit between the President of Guatemala, the ILO Director-General and the Secretary-General of the ITUC. He emphasized the personal commitment of the President to seeking clear, alternative, immediate and focused solutions to the problems in Guatemala, as well as his political will and the momentum he had brought to the negotiations to resolve the dispute with the United States in the context of CAFTA–DR. The impetus of the negotiations and the Government’s involvement had made it possible for a negative situation to be transformed into a process of dialogue helping to lay the foundations of action for solving the problems of Guatemala. In conclusion, he emphasized that without democratic institutions, it was impossible to secure compliance with standards by States. In so far as they built democratic institutions with the participation of all the social partners, they could guarantee that they were moving in the direction of discharging the responsibilities of the State. Like all Latin American countries, and the employers and workers, his Government totally repudiated the terrible violence that afflicted his country, rejected impunity and wished to work towards its eradication. The Guatemalan delegation to the Conference included judges from the Supreme Court of Justice and the President of the Labour Commission of the National Congress, so that the three branches of government were represented in the room, demonstrating the intention to work intensively to resolve the situation. He was sure that, with the ILO’s support and the participation of the social partners, good results would be achieved within the planned time frames.

The Worker members said that all the necessary measures should be taken urgently to guarantee full respect for the right to life, civil liberties and freedom of association and to bring an end to the climate of violence and impunity in the country in view of the difficult situation experienced daily by workers, trade unionists and the people of Guatemala. The Memorandum of Understanding, signed in March 2013, was already a positive step and the Committee should encourage the process launched by the Governing Body. Expressing regret that the employers of Guatemala had not signed the Memorandum, the Worker members urged them to do so as soon as possible, in the firm hope that the Government would honour its commitment to take specific action without delay to apply the Convention in full in both law and practice. In conclusion, the Worker members hoped that the Committee’s conclusions would refer to the current process and that the Committee of Experts would be able to note significant progress at its next session.

The Employer members expressed concern at the generalized climate of violence affecting the freedom of workers’ and employers’ organizations to pursue their activities. They condemned all acts of violence, whatever their origin. They therefore considered it necessary for the independent judicial authorities in Guatemala to identify the real causes behind the violence and its relation to freedom of association. It was urgent for the Government and public institutions to harness their efforts to that end. They said that social dialogue, through the National Tripartite Commission and the Economic and Social Council, would enable solutions to be found to labour issues. They took note with interest of the Memorandum of Understanding signed in March 2013 by the Government of Guatemala and the Workers’ group of the Governing Body and hoped that the issues that it covered would be addressed fully, with ILO assistance. They also hoped that the high-level tripartite representation would be established in the country soon and that the Office would be informed of the conclusions reached and the progress made, so that they could be included in the next report of the Committee of Experts. They considered that the coordinated work of the supervisory bodies and the Government would allow light to be shed on the murders and acts of violence referred to in the report. They emphasized that it was for the Governing Body to deal with matters relating to complaints submitted to the Committee on Freedom of Association and the complaint presented the previous year under article 26 of the Constitution. The Conference Committee should therefore await the decisions taken in that regard. On the issue of legislation, they reiterated the position they had stated the previous year concerning the provisions of Convention No. 87. They firmly believed that the right to strike was neither contained in, nor recognized by the Convention, as they had fully explained to the Committee of Experts in a communication dated 29 August 2012. Finally, they emphasized that the current Government of Guatemala had shown its full willingness to find solutions with ILO technical support and that results were starting to be seen in terms of tripartite social dialogue, trade union registration, the involvement of public institutions in the protection of trade unionists, the reduction in the length of legal proceedings, and particularly in solving the crimes committed. They also emphasized the increase in the budget of the Ministry of Labour to strengthen labour inspection, and the personal commitment of the President of Guatemala.

Conclusions

The Committee took note of the oral and written information provided by the Government and the discussion that took place thereafter.

The Committee observed that the issues in this case concerning this fundamental Convention related to: acts of violence against trade union leaders and members and the situation of impunity in that regard; certain legislative problems, in particular relating to restrictions on the freedom to form organizations and the right to elect trade union leaders in full freedom; limitations in the trade union rights situation in the maquilas and in relation to some public sector workers, as well as in relation to the trade union registration process.

The Committee noted that, in June 2012, some Workers’ delegates to the 101st Session of the International Labour Conference had presented a complaint under article 26 of the ILO Constitution for violation of the Convention. The Committee noted with interest in that regard that the Government, with the involvement and commitment of the President of the Republic, and the Workers’ group of the ILO Governing Body had signed a Memorandum of Understanding (MOU), in the presence of the ILO Director-General, on the basis of which tripartite measures would be taken to ensure the full application of the Convention. The Committee noted that the Governing Body would examine in the near future up-to-date information on the progress made in this regard. The Committee welcomed the information that an ILO representative would be sent to Guatemala in the coming days to assist in solving the problems faced. The Committee also welcomed the announced tripartite high-level mission.

The Committee took note of the information provided by the Minister of Labour that, in the framework of a policy of strengthening institutions, a number of steps had been taken to resolve the issues raised, particularly with regard to: establishment of a working group with the participation of the Public Prosecutor and trade union representatives to report on progress in investigating cases of violence; ILO technical assistance for the Office of the Public Prosecutor; increasing the Office of the Public Prosecutor’s budget to fight impunity; promulgation by the Office of the Public Prosecutor of a general instruction on criminal prosecutions in the event of non-compliance with judicial rulings; presentation of a Labour Sanctions Bill; moving labour courts to a single location and reducing the length of judicial proceedings from 19 to six months on average; accelerating the process of registering trade unions to reduce it from 226 to 20 working days; the important strengthening of the labour inspectorate; the reinforcement of the tripartite national committee; and the establishment and appointment of the Economic and Social Council.

The Committee did not address the right to strike in this case as the employers do not agree that there is a right to strike recognized in Convention No. 87.

The Committee took note with concern of the generalized climate of violence in the country and regretted the new allegations of murders and other acts of violence against trade union leaders and members in 2013. While it took note of the important steps taken by the Office of the Public Prosecutor to investigate acts of violence, and of some concrete results with respect to some investigations, the Committee recalled that the freedom of association rights of workers and employers could only be exercised in a climate that was free from violence, pressure or threats of any kind. It urged the Government to continue taking the steps necessary to provide protection for trade union leaders and members under threat with a view to bringing an end to impunity related to acts of violence affecting the trade union movement, and to carry out investigations so that those responsible would be prosecuted and punished.

The Committee emphasized the urgency of fully implementing the Memorandum of Understanding signed between the Government and the Workers’ group of the ILO Governing Body. The Committee urged the Government to take the necessary measures, in consultation with all the social partners, to amend legislation with regard to the issues raised with a view to bringing it fully into conformity with the Convention. The Committee took note that the Government counted on the ILO’s technical assistance, observed that this assistance, which would include a tripartite element, would be provided in the coming months and expressed the firm hope that it would be able to note tangible progress made on all matters raised. The Committee requested the Government to send a detailed report in that respect to the Committee of Experts for its next meeting in 2013.

Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

The Government provided the following written information.

The Government again reiterates its commitment to the protection and promotion of freedom of association and underlines the absolute priority that must be given to protecting the life and physical safety of all the people of Guatemala, particularly trade unionists. Accordingly, it wishes to point out that measures have repeatedly been taken to combat the widespread violence in the country. Despite the fact that this is a difficult phase in Guatemala’s history, progress has been made in the application of justice as a whole, due to the combined efforts of all institutions involved in the administration of justice.

As an expression of the Government’s desire to give special attention to labour relations, the Inter-Institutional Committee on Labour Relations in Guatemala – which comprises the Ministry of Labour and Social Welfare, the Ministry of Economy and the External Relations, which currently also includes the Ministry of the Interior, each within their respective jurisdictions and without prejudice to the autonomy and independence of the President of the Judiciary, the Attorney-General and Public Prosecutor – met 18 times in the past year. At these meetings the Committee discussed the country’s labour problems, as a result of which it was able to draw up a “road map” with dates and specific activities that the Government of Guatemala is carrying out in order to strengthen the implementation enforcement of labour laws, in conjunction with the judiciary and the Office of the Attorney-General.

In this context, the Government wishes to state most vigorously that it does not tolerate or encourage any threats to, or assaults on, the physical safety or life of Guatemalan citizens, particularly trade unionists, or attacks on trade union premises, inasmuch as it is the duty of the State to safeguard private property as an inherent human right. The Government fulfils its obligation to investigate acts of violence and/or offences relating to private property. In order to improve the investigation of offences committed against trade unionists, the Inter-Institutional Committee on Labour Relations in Guatemala and the Tripartite Committee on International Labour Affairs have requested that the responsible unit be strengthened.

The Government is pleased to state that the Office of the Prosecutor-General has been restructured and, under Agreement No. 49-2011 of 20 May 2011 to amend Agreement No. 37-2010 containing the regulations governing the structure and functioning of the Human Rights Department of the Prosecutor’s Office, it has established a Special Prosecutor’s Office to investigate offences against trade unionists. These changes will appear in the Prosecutor-General’s classification of posts and salaries.

The Supreme Court of Justice has also made important changes in the way it operates, specifically with regard to labour issues, for which a new management model has been adopted that seeks to separate administrative from judicial functions, in order to focus expert resources on judicial matters and assign administrative matters to appropriately trained staff. All labour courts are accordingly now housed in a single building, which will streamline and expedite the services provided. The measures described above call for close coordination between the institutions responsible for administering justice, so as to cover every aspect of the protection of workers’ rights.

The Constitutional Court, which is a permanent court with its own jurisdiction, whose essential function is to uphold the constitutional order and which acts independently of other state bodies in order to guarantee the rights of the people of Guatemala, has handed down the following rulings with respect to the application of procedural law and labour law:

– Appeals to maintain workers’ rights (amparos): If for any reason during the processing of such appeals a case could not proceed or if it could be declared irreceivable because the correct formalities were not observed or because of a procedural irregularity, the Constitutional Court has ruled that, in particularly relevant cases in which specific rights are discussed (existence of an employment contract, justified or wrongful dismissal, entitlement to payment of outstanding wages, etc.), the appeal interrupts the statute of limitations as it might pertain to a given right – generally with respect to workers’ rights. Those concerned can thus initiate ordinary legal proceedings without regard to the statute of limitations.

– Restrictions on the right to appeal: The Constitutional Court has determined that litigants in legal proceedings with specific appeals procedures may not have recourse to other appeals procedures. In accordance with section 365 of the Labour Code, under the principle of “special jurisdiction” an appeal may only be lodged against a final judgment setting aside a case or pronouncing a verdict. No appeal is admissible if it does not fulfil one of these conditions.

– Precedence given to worker’s claims (amparos laborales): Under the authority conferred on it by the Habeas Corpus Act (Ley de Amparo, Exhibición Personal y Constitucionalidad), the Constitutional Court has amended Agreement 4-89 to the effect that appeals for protection under the Constitution can no longer hinder the course of ordinary court actions. There were two key amendments that should be highlighted under this new legislation. First, the Agreement expressly stipulates that, so long as provisional protection of the courts has not been officially decreed by the Constitutional Court, ordinary court proceedings must follow their normal course. This modifies previous practice whereby courts of law would suspend proceedings whenever any of their rulings was challenged on grounds of infringement of constitutional rights. The second amendment concerns requests for protection by the court also at the appellate level and that such requests must be substantiated. This is to avoid simple appeals, which in the past tended to be lodged mechanically and systematically merely to hold up the proceedings. By requiring that full grounds be submitted, the Constitutional Court’s role, other than that of examining the appeal in detail to determine whether there is any irregularity from the constitutional standpoint, is limited to considering the case that is placed before it.

These rulings of the Constitutional Court are legally binding and apply to all legal proceedings initiated by workers, which constitutes significant progress in the defence of labour rights. Pursuing its systematic and integrated approach, and in order to strengthen the enforcement of labour legislation in the country, the Government has signed an Inter-Institutional Framework Agreement for the Exchange of Information between the Ministry of Economy and the Ministry of Labour and Social Welfare (Decree 29-89 of the Guatemalan Congress), whereby the general labour inspectorate keeps a single centralized registry (part of the Integrated Labour System) of all entities entitled to the benefits conferred under the aforementioned Decree 29-89 for the Development of Export Processing Zones (maquilas). As a result, it is now possible to cross-check the information that is used in the labour inspectorate’s enforcement of labour laws. This is reinforced by the Directorate of Trade and Investment Services of the Ministry of Economy which, through its Industrial Policy Department, verifies that enterprises make proper use of the benefits to which they are entitled. The State of Guatemala thus complies with the legislation in force by establishing an efficient mechanism for the Ministry of Economy to carry out its supervisory activities, in coordination with the Ministry of Labour and Social Welfare and for the greater benefit of the workers.

The Government emphasizes that the legitimacy of the Tripartite Committee on International Labour Affairs and of its members, as well as the representativity of workers’ organizations, can be established only through the Labour Register of the General Labour Directorate of the Ministry of Labour and Social Welfare, with which they are required to update their registration each year. Otherwise, not only do they have no legal personality but it is impossible for them to establish their representativity. The Government’s invitation to the employers’ and workers’ sectors to be part of the Tripartite Committee on International Labour Affairs was published at the end of 2010 in the most widely read newspaper in the country so that all organizations that wished to participate could do so.

Regarding the amendments that are needed for Guatemala’s legislation to comply with the international labour Conventions that it has ratified, a committee is to be appointed under an agreement currently being drafted by the General Secretariat of the Presidential Office to study how the labour legislation needs to be amended to fulfil the obligations deriving from ILO Conventions ratified by Guatemala, along with other commitments entered into within the framework of Chapter XVI of the Dominican Republic–Central America – United States Free Trade Agreement (DR–CAFTA).

In order to guarantee that the general labour inspectorate can carry out its activities in places of work without hindrance, the Ministry of Labour and Social Welfare, by virtue of Ministerial Agreement No. 42.2011, has laid down the procedure to be followed if the labour inspectors encounter opposition.

Finally, the Government draws attention to the fact that it has made a considerable effort to improve labour justice in the country, and that in the past two years much has been done to establish the basis for far-reaching changes in the implementation of Guatemala’s labour legislation.

In addition, before the Committee, a Government representative reported on initiatives and progress made in the country in the area of labour since the last session of the Conference. In follow-up to the conclusions reached by the Committee on that occasion, the Government had received a visit from Dr Alfonso Valdivieso, accompanied by ILO officials, from 9 to 13 May 2011. The members of the mission had been received by the Ministry of Labour and Social Welfare, the Labour Committee of the Congress of the Republic, the Attorney-General and the Public Prosecutor, the Supreme Court of Justice, the International Commission against Impunity in Guatemala (CICIG), and the Constitutional Court. His Government was willing to address the recommendations of the mission.

With regard to the observation of the Committee of Experts and the cases pending with the Attorney-General’s Office, the Office of the Public Prosecutor had undergone internal reorganization, having issued an agreement reforming the regulations on the organization and operation of the human rights section of the Office of the Attorney-General, and a special prosecution unit was being created for crimes against trade unionists. On the issue of legislation, the President of the Republic had created a presidential commission to study labour legislation reform in order to implement obligations arising from ratified ILO Conventions, which brought together the Minister of Labour and Social Welfare, the Minister of the Economy and the Minister of External Relations. With regard to trade union membership rates and the very small number of collective agreements, it must be recalled that, in accordance with the Convention, the Minister of Labour and Social Welfare was legally prevented from doing anything about the low level of unionization and had therefore refrained from taking action. Furthermore, the Labour Code provided that the Minister of Labour and Social Welfare should formulate and implement a national policy to protect and develop trade unionism, as evidenced by the fact that, in 2011, 46 trade unions had been registered and, in November 2010, the first collective agreement on working conditions had been signed between the National League against Cancer and its trade union.

With regard to the exercise of trade union rights in practice at maquilas (export processing zones), the speaker indicated that the Government had accepted technical assistance from the Office to deal with the issue and to study the recommendations made. The Government had prepared an Inter-institutional Framework Agreement for the Exchange of Information between the Ministry of the Economy and the Ministry of Labour and Social Welfare, and the Inspectorate-General of Labour maintained a single centralized register of all trading enterprises eligible to benefit from the Act to foster and develop export and maquila activities. Since the framework agreement had entered into force, the Ministry of Labour had inspected 747 registered export companies and had established that 20 enterprises were failing to comply with labour legislation, of which 11 had rectified the situation, four had had their tax benefits revoked, and the rest were still being investigated.

With regard to labour inspection, a permanent programme of training for labour inspectors had been introduced at the national level, with support from the United States Department of Labour and from the ILO. A first national meeting of labour inspectors and health and safety officials had been held, in which 90 per cent of labour inspectors had taken part. Training had also been enhanced as regards the introduction and use of inspection protocols and in best practices in the use of the electronic case system. The Government of Canada had also supported the training labour inspectors in Guatemala through the “Real Card” project. Lastly, the Ministry of Labour and Social Welfare had published a ministerial agreement strengthening the role of labour inspectors to avoid that they encounter obstacles when inspecting enterprises in all productive sectors within the country. With regard to the registration of trade unions, workers’ organizations had been asked to update their details as required by law in order to provide legal certainty for their activities. With respect to the registration of the Trade Union Confederation of Guatemala (UNSITRAGUA), the Government had provided the mission with a document fully clarifying the Union’s legal status. The speaker concluded by stating that the Government of Guatemala was displaying political will, as a result of which various initiatives had been strengthened and were starting to bear fruit. It was receiving invaluable assistance from the Governments of the United States, Canada and Spain, the European Union, and the Office, to all of which it expressed its deep appreciation.

Another Government representative, magistrate of the Supreme Court of Justice, indicated, with reference to judicial issues, that the programme “Zero tolerance for corruption, peddling of influence and impunity” had been launched and that the labour courts created to overcome the backlog of labour cases were fully operational. A specific unit with the capacity to monitor and follow the progress of labour procedures had been established allowing matters to be expedited and the guidance and information provided to those concerned. A computerized system allowing judges to take action of their own initiative in the case of non-execution of sentences and reinstatement orders, had also been established. Over a period of 19 months, the Chamber for the Protection of Rights (amparo) and Preliminary Hearings (antejuicio) had overcome a backlog of over 1,400 labour cases. That was being achieved, inter alia, with the assistance of the United States Agency for International Development. Moreover, a labour inspection office was operating in the same building to provide on-the-spot guidance to users on labour and procedural issues, thereby facilitating access to information and justice. That had also strengthened the State’s inter-institutional links.

With regard to the measures taken by the Supreme Court of Justice, she indicated that the Criminal Chamber had adopted measures relating to the access to legal assistance for victims, the coordination of inter-institutional action and collaboration with civil society. Coordination mechanisms had been established between the judicial authorities and a series of victim support institutions, through the operation of a programme combining municipal victim support bodies, as well as judicial facilitators trained and supported by the judicial authorities. Magistrates and prosecutors in the courts in criminal matters were particularly vulnerable to threats and other forms of coercion. The ordinary criminal courts were not adapted to cope with that and special criminal tribunals had been created to hear cases involving higher risk crimes and to respond more effectively to the generalized situation of violence which existed in the country. That was a response by the Supreme Court of Justice to the situation of impunity.

With regard to crimes against trade unionists, she indicated that every effort was being made to ensure that they were duly investigated and brought to justice. The possibility was envisaged of entrusting one of the existing criminal tribunals with the specific function of hearing cases of crimes against trade unionists, in view of the specificity of the victims, through the training of magistrates and auxiliary personnel to raise their awareness of the role of trade unions in the country. She also referred to the measures adopted in relation to working women. Since November 2010, six judicial instances had been in operation specializing in the murder and violence against women, including women workers for violence at the workplace. These measures had been made possible through the support of the United States Embassy, Spanish cooperation and the United Nations Population Fund. In conclusion, she thanked the governments, international organizations and civil society which had made it possible to improve the judicial system in the country.

The Employer members emphasized that it was a recurring case which was well known in the Committee since it had been discussed on at least 15 occasions, the last of which had been in 2010. This year it also came with a specific request from the Committee of Experts that the Government should submit further information at the Conference. Since 2001, violence had become increasingly widespread in the country as a result of the growth in drug trafficking and its impact on the exercise of freedom of association, and that had concealed or obscured some progress which could have been noted previously in relation to legislative changes. The observations of the Committee of Experts dealt with the situation of violence against trade unionists, on the one hand, and with the legislative changes that ensured the free establishment and operation of trade unions, on the other. The information supplied by various organizations was a source of concern for all parties. It should be emphasized that technical assistance had been provided by the ILO on numerous occasions aimed at supporting change in the regulatory framework, even though some major issues were still unresolved. In view of the gravity and urgency of the issue, the speaker emphasized that he would focus on the situation of widespread violence, which showed no signs of changing for the better. With a view to improving the situation, a number of direct contacts and high-level missions had visited the country. The Government had made an undertaking to draw up a roadmap to eliminate the violence, which had sought, unsuccessfully, to achieve agreement among the parties in the context of social dialogue. In June 2010, the Government had also agreed to the visit of an important international dignitary, accompanied by ILO officials, and that had gone ahead recently with the visit of Mr Valdivieso.

The Employer members stated that the measures that called for the elimination of acts of violence could be divided into two categories. The aim of the first category was to strengthen the institutions responsible for ensuring effective respect for freedom of association in practice. Guatemala was a developing country, still poor compared with other countries in the region, where the situation of violence appeared to be aggravated by significant institutional weakness which needed to be rectified. Both the roadmap and the repeated requests by the Committee of Experts and this Committee stressed the need to: increase budgetary allocations and reinforce the Office of the Public Prosecutor; increase the number of magistrates, inspectors and staff of the Ministry of Labour and Social Welfare; strengthen relations between the institutions; expedite proceedings in criminal and labour law cases relating to freedom of association; boost resources for increasing protection for trade unionists and their families and for witnesses who had been assaulted or threatened; and enforce sentences that have been passed by the courts. The second category of measures concerned the data and information relating to the evaluation of actions undertaken to analyse developments regarding this phenomenon.

In 2010, the Employer members had vigorously expressed their concern and the Government had been requested to demonstrate its political will by sufficient action to make the issue a priority, especially through budgetary allocations, the enforcement of court sentences and improved resources for the judiciary and administration. The Committee of Experts found no evidence of sufficient progress made, or at least regretted that the report submitted did not include information on strengthening of the institutions or evaluation of the progress made. They therefore voiced much greater concern than in previous years, and that was certainly the reason for requesting further information at the present session of the Conference. A worsening of the situation was also noted, especially in view of the conclusions of the Committee on Freedom of Association in 2009 and 2010.

The Employer members welcomed the information supplied by the Government and the magistrates of the Supreme Court of Justice in relation to the training of judges, the number of trade unions and the restructuring of the judiciary. However, that information was insufficient since it was also supposed to cover developments in the situation regarding the acts of violence. The investigation was important and should enable a clear definition of violent acts which took place in a context of widespread violence and those which resulted from measures taken specifically against trade unions. Serious violence had occurred resulting in the death of employers, in the very exercise of freedom of enterprises and right to collective bargaining. The Government had demonstrated goodwill through the acceptance of various high-level, direct contacts and technical assistance missions, and through its regular submission of reports. But goodwill was insufficient. In addition, the budget limitations resulting from a very fragile economic situation were not incompatible with priority and urgent actions in that sphere. The dialogue with the Government and the cooperation with this Committee and the Committee of Experts should be preserved as the best instrument for guaranteeing basic labour rights. Nothing should be allowed to weaken the capacity for investment and economic development in the country, since that was crucial for the strengthening of the institutions that would enable effect to be given to the obligations established by the Convention.

The Worker members recalled the statements they had made to the Committee, at the June 2010 Session of the Conference, with regard to the acts of violence against trade unionists in Guatemala, the legislative difficulties involved in implementing Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the matter of judicial impunity. At the time, they had presented very specific conclusions aimed at guaranteeing the full and comprehensive exercise of freedom of association as part of the strengthening of democracy in Guatemala and had expressed their strong desire that the Committee’s conclusions be included in a special paragraph of its report so as to draw attention to the contempt with which the country had treated Convention No. 87 since at least 1991. Their view had not prevailed, however, and after a highly animated discussion the Committee had opted to follow the proposal of the Employer members requesting the Government “to accept the possibility of the visit of an important international public figure, accompanied by the ILO at a high level, to examine these matters and make recommendations”. Out of respect for the ILO, the Worker members had gone along with the proposal. Yet, what new developments had there been in 2011 with regard to the conclusions adopted in 2010? Until the statement that had just been heard from the Government representative, the matter of the visit by an international public figure had not been clear; in any case it was the Government itself that had chosen the person that suited it best. At its previous session, the Committee of Experts had had very little legislative or factual information on the situation in the country at its disposal, whereas the Government had been supposed to communicate a detailed report in 2010 on tangible progress on all the points raised by this Committee. The Worker members had rejected any suggestion that the Committee of Experts be held to account for basing its comments solely on the documents in its possession and had emphasized that those comments reflected a strictly literal interpretation of the Convention. It was obvious from the information obtained from all sides that nothing had changed and that the Government’s lack of political will reflected its contempt for the workers. Legislative texts might be amended, but the same could not be said of their enforcement. The reality behind the situation was plainly economic greed.

The Worker members also noted the high-level mission that had taken place from 9 to 14 May 2011 and that the Government had, on 1 October 2010, requested ILO technical assistance to clarify the matter of UNISITRAGUA’s registration as a trade union. They recalled the tripartite mission that had visited the country in February 2009, during which the members of the mission representing workers had sensed a total lack of consideration on the part of the Government. That nothing had changed since the 2009 high-level mission was all too clear from the conclusions adopted by the Committee in 2010: the worsening of the situation of violence and impunity, insufficient political will to take action to combat violence against trade union leaders and members and to combat impunity, the urgent need to ensure simple and prompt recourse or any other effective recourse to competent courts or tribunal, and the need to take measures to strengthen social dialogue, redefine the representation bodies and guarantee access for workers’ representatives that had been freely elected by the organizations existing in the country, in accordance with the comments of the supervisory bodies.

The high-level mission that had taken place in May 2011 was supposed to clarify those four points. In its report the mission had begun by recalling the staggering number of union leaders and trade unionists who had been murdered or whose lives had been threatened since 2007. It had referred to the generalized climate of violence and to the very limited resources employed by the judiciary to eradicate violence and restore the rule of law. It had also raised the legislative problems that were regularly mentioned by the ILO supervisory bodies, drawing attention especially to the provisions of Guatemala’s Labour Code that were in contradiction with Convention No. 87. The high-level mission had expressed its deep regret that, since the previous year, there had been no progress in the reforms called for by the Committee of Experts and that the Tripartite Commission on Labour Affairs had not presented a single Bill to Congress. While noting the arguments advanced by the Guatemalan authorities with regard to the progress made in the coverage of collective agreements in maquilas, the mission had expressed its doubts on the subject given the extremely low level of union membership in those areas, which it had been able to verify through its contacts with the union federations. In addition, it had asserted that it was urgent that the Trade Unions’ Unity of Guatemala (CUSG), the General Confederation of Workers of Guatemala (CGTG) and UNISATRAGUA take part in the activities of the Tripartite Commission on Labour Affairs, of which they were not members. The high-level mission added that a social dialogue institution that ignored such an essential part of the trade union movement could not adequately achieve its objectives. Finally, the mission’s report included its observations on the registration of trade unions, though there was no indication that the Government recognized that there was any need to envisage establishing a procedure for facilitating their registration. The one positive aspect was that the high-level mission had taken note of the creation of a bipartite working group within the Tripartite Commission on Labour Affairs, with the mandate to draw up a Bill on the establishment of an Economic and Social Council. If that Bill was not to be just for show, then it would certainly need the benefit of ILO technical assistance.

An observer of the International Trade Union Confederation (ITUC) stated that, for the past 57 years, the State had, under both military and civil regimes, been systematically violating Convention No. 87. There existed an unwritten policy against freedom of association that resulted in the Government having to appear before the Committee for 15 consecutive years. Despite a succession of high-level missions, direct contacts and technical assistance, the Committee of Experts was still calling on the Government to guarantee the protection of trade unionists facing death threats, to speed up judicial procedures and to investigate murders and other crimes against trade unionists so as to punish those responsible and to resolve the serious problem of judicial impunity for such crimes. During the high-level mission that visited the country in May 2011, the Minister of Labour and Social Welfare claimed that the trade unions’ accusations were unfounded and were just looking for confrontation. The speaker wondered whether the recent murder of union leaders, the systematic anti-union harassment, the mass dismissals of trade unionists, the refusal of employers to comply with court rulings in favour of trade unionists and the failure to investigate several murders were also just looking for confrontation. As the conclusions of the high-level mission showed, the situation continued to be delicate, serious and preoccupying.

The Employer member of Guatemala welcomed the visit of Mr Valdivieso as the head of the high-level mission entrusted with examining the issues that were pending. The speaker reiterated the willingness of the employers of Guatemala to promote the recommendations that were made and emphasized that he shared the concern of the mission regarding the acts of violence against trade unionists. Nevertheless, it was important to take into account the context in which such acts of violence were occurring, and the efforts made by the country to strengthen the rule of law. It was of vital interest to employers that acts of violence against trade unionists and employers were investigated, with a view to bringing those responsible to justice and identifying whether the causes of the crimes were linked to the professional activities of the victims. One of the figures that gave rise to concern was the number of violent deaths of employers, which had amounted to 28 in 2010.

Those concerns were shared by the judicial authorities and the magistrates of the Supreme Court of Justice were following the matter closely, resulting in the establishment of new labour courts. The Tripartite Commission on International Labour Affairs had been urging the Office of the Attorney-General of the Republic to strengthen investigations into these acts, while the executive authorities had also commenced the reinforcement of the general labour inspectorate. The employers of Guatemala would monitor, through the Board of the General Labour Inspectorate, that the process continued. More transparent procedures had been established for appointments to high-level positions with responsibility for justice and the work of the CICIG was a step in the right direction in combating the climate of impunity. Guatemala was a pioneer in the implementation of real concrete measures adapted to the actual situation, with the support of the international community, with a view to finding a solution to a problem that was threatening to spread throughout the region. It was not true to say that there existed a climate of anti-union violence, but rather that violence affected all sectors equally.

With regard to the need to adopt amendments to bring the national legislation into conformity with ILO Conventions, the speaker recalled the need to seek consensus in tripartite dialogue forums and reaffirmed the will of employers to achieve such agreements. He expressed disagreement with the Committee of Experts concerning the need to amend the legislation respecting the right to strike, which was not regulated by any ILO Conventions. He added that social dialogue was under threat due to the divisions among trade union leaders in the country.

He indicated that union membership and collective bargaining rates needed to be analysed in terms of the population engaged in the formal economy, rather than the whole of the economically active population. Moreover, the membership of representative organizations had fallen throughout the world, and Guatemala was no exception. Figures indicated that anti-union discrimination was practically non-existent in the maquila sector. There had been no unlawful closures as a result of the close collaboration between the private sector and the labour authorities. Finally, he emphasized the progress achieved in the application of justice and the contribution made by civil society to strengthening the rule of law, which was the only way of getting to the roots of the problems highlighted by the Committee of Experts that were difficult to resolve. Problems still remained, but progress was being made to guarantee the full exercise of rights for all citizens.

The Government member of Argentina, speaking on behalf of the Government members of the Committee which were members of the Group of Latin American and Caribbean countries (GRULAC), welcomed the information provided by the Government, the magistrates of the Supreme Court of Justice and the social partners. GRULAC noted that the active participation of the Government reflected the political will to resolve the challenges that the country faced in applying the Convention. The speaker welcomed the visit of Mr Valdivieso, accompanied by officials of the ILO, in compliance with the Committee’s 2010 conclusions. The mission’s recommendations should help the authorities to tackle the problems the Government faced. Guatemala needed the support of the ILO and the Committee’s supervisory mechanism should be used to help governments meet the commitments they entered into upon ratification of ILO Conventions. In conclusion, the speaker encouraged the Government and the Office to continue their efforts to ensure the full application of the Convention.

The Government member of Belgium, speaking also on behalf of the Government of Luxembourg, regretted having to repeat the statement he had made in 2010 and expressed his concern in its regard. The Government of Guatemala had, since 1991, been the subject of several observations by the Committee of Experts for non-observation of freedom of association. Since 2005, five high-level missions and several technical assistance programmes had been sent by the ILO to Guatemala without achieving concrete legislative results. The Guatemalan authorities must ensure freedom of association, in direct collaboration with the social partners and with the assistance of the ILO. He welcomed that a Tripartite National Commission for full implementation of the Convention, as well as a roadmap, had been established. The tripartite nature of that Commission must be preserved and if possible encouraged by an inclusive dialogue. Moreover, over the past three years, the number of violent deaths of trade unionists had increased dramatically, in a context of insecurity and increasing violence affecting the whole of the population. The Government of Guatemala must take measures to prevent harassment, persecution and assassination of trade unionists, and to combat impunity. The results of the investigations carried out should be made public. Only through such steps, the Government would prove its political willingness to combat, credibly, violence committed against trade union members and to combat impunity, in accordance with the recommendations accepted by Guatemala within the framework of the Universal Periodic Review by the United Nations Human Rights Council. In conclusion, the speaker reaffirmed the importance of the cooperation between the authorities of Guatemala and the ILO.

The Government member of the United States noted that since 2008, in the context of the Dominican Republic–Central America–United States Free Trade Agreement (DR–CAFTA), her Government was reviewing many of the same issues as the Committee of Experts with regard to Guatemala’s application of the Convention and had engaged extensively with the Guatemalan Government in an effort to resolve the issues raised in a public submission, filed by the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) and six Guatemalan unions, as well as to address systemic concerns about the enforcement of labour law in Guatemala. Although some positive steps had been taken, the Government remained gravely troubled by the overall lack of progress to date. The speaker noted that the Government of Guatemala had acknowledged the serious challenges it faced in effectively protecting the right to freedom of association and had on several occasions availed itself of ILO technical assistance to overcome these challenges. Nonetheless, devastating acts of violence against trade unionists continued; there were numerous shortcomings in the criminal, civil and labour courts that prevented effective enforcement of labour laws; and the situation of impunity remained as serious as ever. In view of these challenges, the speaker once again strongly urged the Government to intensify its efforts, in close collaboration with the ILO and with the full involvement of the social partners, to take the concrete and sustainable measures, which were urgently required, to guarantee freedom of association and the right to organize in Guatemala. Finally, the speaker expressed the hope that the Government of Guatemala would act decisively and without further delay to implement the conclusions and recommendations of the recent high-level mission so as to mark a long-awaited turning point in the application of the Convention in Guatemala and genuine progress toward full respect for the most fundamental of workers’ rights.

The Worker member of the United States recalled that Guatemala was one of the most frequently reviewed countries by the supervisory bodies of the ILO with regard to violations of the right to freedom of association and collective bargaining. For the last 20 years the supervisory bodies had identified and denounced serious, widespread and systematic violations of these fundamental rights and the ILO had sent several high-level missions to Guatemala, the latest one less than a month ago. Despite these efforts, Guatemala could be described as experiencing a near complete breakdown in the systems of labour and criminal justice. Much of this could be attributed to a complete lack of political will and successive administrations, which had together misused millions of dollars in capacity-building funds and technical assistance oriented towards the improvement of labour administration, judicial reforms and enhancing the capacity of public prosecutors to combat violence against trade unionists. With regard to anti-union violence, he recalled that freedom of association could only be exercised in conditions in which fundamental rights, in particular those relating to human life and personal safety, were fully respected and guaranteed. Statistics provided by the ITUC indicated that Guatemala was the second most dangerous country in the world in which to be a trade unionist. Furthermore, statistics provided in relation to the ILO high-level mission indicated that 53 trade unionists had been assassinated during the last five years. The most recent killing had taken place on 26 May 2011, in which Mr Idar Joel Hernandez Godoy, Director of Finance for Izabal Banana Workers’ Union (SITRABI), was killed while driving the union’s truck. During the last five years, three other SITRABI leaders had been murdered and in 1999 five members of SITRABI’s executive board had been forced into exile. In this regard, the speaker noted that despite the establishment of an office of the Special Prosecutor for crimes against trade unionists and journalists in 2002, there had been no progress in bringing the persons responsible for these crimes to justice. Police and department-level prosecutors often failed to undertake competent investigations and too frequently failed to investigate all possible motives, especially ones related to the victim’s trade union activity. This had also been indicated by the high-level mission, which had noted that in recent years there had been a certain tendency among investigators to privilege motives other than trade union activities. This tendency was in his view largely responsible for the 98 per cent rate of impunity in Guatemala. While referring to the Committee of Experts’ observation, he expressed his concerns that the announced budget cuts for the justice system in 2011 would worsen the situation. In conclusion, he urged the Conference Committee to include its conclusions on Guatemala in a special paragraph in its report and called upon the Government of Guatemala to combat the violence which was an impediment to the full and free exercise of freedom of association.

A Worker member of Colombia stated that the case of Guatemala was a serious, persistent and urgent case to which the Government had not provided a serious and convincing reply. It was a case of repeated and systematic non-compliance. The Government had maintained an anti-union policy and had allowed employers to maintain practices aimed at destroying the trade union movement, while the ILO supervisory bodies had been dealing with the case for more than 20 years. These bodies had identified at least 12 kinds of practices which obstructed trade unions’ rights to become established, including as a prerequisite, authorizations for trade union registration; the possibility for employers to challenge the establishment of a trade union; the sale of blacklists of workers who had belonged to unions; the judicial suspension of trade union immunity; the creation of “solidarity organizations” under the control of the employers; the fraudulent closure or change of name of the workplace; and the use of legal proceedings against workers. These practices were based on legislation which was contrary to the Convention and had not been changed, nor were there any government initiatives to change this legislation or to introduce mechanisms to provide protection against such abuses. The result of anti-union policies was that Guatemala had an extremely low rate of trade union membership (less than 2 per cent). He stated that nearly 200 pending applications for the registration of trade unions had received no reply from the Ministry of Labour and that as a result of the imposition of illegal and unfair requirements that delayed the deposit of union statutes more than half of the trade unions established in Guatemala (561 out of 961) had ceased to exist. None of the productive sectors in Guatemala achieved a trade union membership rate of even 1 per cent. Membership rates were as follows: 0.01 per cent in services and commerce; 0.31 per cent in the financial sector; 0.11 per cent in construction; 0.5 per cent in the maquila (export processing) sector; 0.6 per cent in industry; and 0.47 per cent in agriculture. The overall rate of unionization did not exceed 0.33 per cent. The Single Confederation of Workers of Colombia (CUT) regretted that a legitimate and autonomous trade union federation such as the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG) was exposed to constant attacks for its repeated denunciation of violations of international labour standards, especially freedom of association. The speaker asked the Committee to remind Guatemala that it was unacceptable to exclude workers associated in different federations from social dialogue on grounds of submitting complaints and defending the working class.

The Government member of Germany expressed regret at the continuing violations of trade unions’ rights. While he welcomed the efforts made by the Government of Guatemala, he hoped that the Government would take note of the discussion which took place before the Conference Committee and act accordingly, especially with regard to improving the administration of justice.

The Worker member of the Bolivarian Republic of Venezuela expressed solidarity with the workers of Guatemala and, in particular, organizations such as the MSICG, in the face of acts of harassment, intimidation and persecution. She expressed particular concern at the serious and repeated violations occurring in export processing zones and provided the following data gathered by the MSICG from official records: of 90,000 workers in the maquila sector, only 488 were unionized, spread among six unions, all in precarious situations, and only three of which had managed to negotiate collective agreements, and they had done so merely for the sake of appearance, as the agreements either restricted the rights set out in legislation, or at best, restated them. She underlined the fact that, between 2006 and 2009, 71 maquila closures had been requested from the labour inspectorate and in the majority of cases, employers had not fulfilled their labour obligations. Although the Government had claimed to have imposed penalties on certain enterprises by suspending their tax benefits, in reality, the benefits enjoyed by these enterprises had only been suspended once the enterprises were no longer active. There had in fact been an increase in the tax benefits provided for by Decree No. 29-89 through an initiative promoted in Congress. She referred to the inclusion of representatives of the judicial authorities in the Government delegation, pointing out that one of the most serious issues was the systematic failure of the justice system. In that regard, she recalled that the MSICG had submitted proposals in that respect during the mission that had taken place in May 2011, and that its proposals had been intended to guarantee rapid and straightforward access to the competent tribunals for protection against acts that violated fundamental rights. She mentioned the significant judicial backlog and the fact that only 1 per cent of cases, brought with the aim of exercising the right to strike, resulted in the strikes in question being declared legal. It was being claimed that abuses of the amparo mechanism were causing the judicial backlog, but it was most often the Government of Guatemala, in its capacity as an employer, that submitted amparo claims. The Government brought 40 per cent of amparo cases, while private employers brought 36 per cent. The Committee had requested an increase in the resources allocated to the justice system, but the opposite had occurred, and the Supreme Court of Justice itself had stated, on 12 May 2011, that the 2011 budget for the justice system had suffered enormous cuts, which meant that many judicial functions might have to be put on hold. She concluded by requesting that, in view of the Government’s lack of political will and refusal to cooperate over many years, the Committee’s conclusions should feature in a special paragraph.

The Worker member of Uruguay said that the members of the Inter-Union Assembly of Workers – National Convention of Workers (PIT–CNT) deplored the fact that the absence of freedom of association in Guatemala was so serious that the MSICG – which represented over 225,000 paying members and, as a representative autonomous confederation, was the principal complainant against Guatemala before the ILO’s supervisory bodies – had been identified by the Government in its 2010 reports as seeking to destabilize the country and had been accused of terrorism on the sole grounds of having denounced the absence of freedom of association in the country. He requested that in the Committee’s conclusions the Government be requested to provide protection for the MSICG and its work teams and to put an end to the repression and criminalization of its activities simply for upholding freedom of association. If trade unions were to function in a climate of freedom of association, they had to be able to enjoy all civil liberties in full respect for human rights, especially as they related to people’s life and safety. The fact that such a situation existed meant that terrorist practices and activities were being protected or concealed, which was tantamount to state terrorism on the part of the very institution that should be enforcing those rights rather than denying them. There were other trade union rights that were being trampled on through the Government’s interference, its failure to enforce labour legislation, the lack of any effective judicial procedures and the denial of the workers’ right to establish trade unions of their own choosing. Instead, there was an obligation on the Government to promote freedom of association and the establishment of trade unions by taking steps to facilitate the exercise of those rights. That was not how the Government of Guatemala was behaving.

The Government member of Norway recalled that the Government of Guatemala had, on several occasions, appeared before the Conference Committee with regard to violations of the Convention. On these occasions, his Government, along with other countries, had urged Guatemala to take measures to bring its law and practice in line with the Convention. In this regard, the speaker associated himself with the statement made by the Government member of Belgium.

Another Worker member of Colombia said that, for all the Government’s assertions of its good intentions, it should not be forgotten that for the past 15 years the Committee had been unable to obtain any reliable indication that it could look forward to legislative changes that might be conducive to the full exercise of workers’ rights as they related to freedom of association. As early as 1998, the Committee of Experts had called on Guatemala in no uncertain terms to bring its legislation into line with international labour standards, and for the workers it was unacceptable that such a request be ignored. It was unfortunately obvious that there were still restrictions in terms of freedom of association, collective bargaining and the right to strike, which had been criminalized. That was why union membership was so low that those who claimed that the rule of law existed in Guatemala should be ashamed. A State that failed to respect these rights was a failed State that was doomed to failure; there could be no democracy if workers’ rights were not respected. He wondered: (1) how much longer the dilatory tactics of successive Guatemalan governments were going to continue; (2) why the current Government had not submitted the relevant Bills to Congress; (3) whether a level of unionization of under 2 per cent was something that the Government and the employers could be proud of; and (4) how the Government could hope to establish the rule of law in a country that did not respect workers’ rights even minimally. The speaker recalled that the high-level mission that had visited Guatemala in May 2011 had clearly indicated its concern at the legislative situation in the country, and especially the criminalization of strike action. Although he hoped that the Committee would see genuine progress in 2012, he requested that the conclusions of the Committee be included in a special paragraph in its report.

The Worker member of Brazil expressed his support for the trade union movement of Guatemala. The absence of democracy could well be one of the causes behind the murders of trade unionists in Guatemala. The report of the Committee of Experts gave concrete and alarming examples of situations encountered by trade unionists: 47 trade unionists assassinated between 2007 and 2010; acts of intimidation and acts of violence committed against trade unionists and trade union offices, as well as the absence of negotiations with the enterprises of the country, were all disgraceful situations for Guatemala and for Latin America. In that connection, special protection had to be put in place for trade unionists and ensured by the Prosecutor responsible for human rights. Furthermore, it was important for all trade unions of Guatemala to participate in all dialogue forums as it was equally important to avoid the discrimination of the trade union movement of the indigenous peoples so as to ensure its participation in social dialogue. For it was not up to the Government, nor the employers, to choose their interlocutors in social dialogue as the latter should be engaged with all the social movements and all the trade union movements of the country.

An observer representing the World Federation of Trade Unions said that the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG), an independent trade union confederation representing more than 255,000 workers, regretted the fact that the Government had not provided the Committee with a reply to the comments made by the MSICG in 2010, and further regretted the fact that the Government was failing to respect the ILO supervisory bodies and those present on the Committee, displaying no political will at all. She illustrated this with the following examples: (1) despite the Committee’s request to the Government to increase the budget allocations for labour inspection, the Office of the Attorney-General, the police and the Supreme Court of Justice, the Supreme Court had revealed the fact that the justice system had suffered unthinkable cutbacks; (2) in 2010, the Government had informed the Committee of an increase of 30 labour inspectors, but the number of inspectors had fallen from 197 to 185; (3) whenever the State was being questioned about anti-union violence, it created or suppressed the unit for crimes against trade unionists or the Office of the Attorney-General to suit itself; (4) the Government cited as a step forward the Ministerial Agreement No. 106-2011, issued on 3 March 2011, which, according to the Government, would allow the police, together with labour inspectors, to enter a workplace if an employer denied access for three days, but only if there were signs of the worst forms of child labour, if maquilas were to be closed, or if more than ten workers had been dismissed. She said that the aforementioned Agreement represented a serious setback and a flagrant violation of section 281 of the Labour Code, which covered the obligation of the labour inspection services to enter premises, accompanied by the police, at any time if an employer refused access and in any circumstances; (5) the Government had stated that it had recovered large sums of money for workers dismissed from maquilas but, between 2005 and 2010, workers had lost more than 73 per cent of the labour benefits to which they had been entitled because of failures on the part of the labour inspection services; (6) with regard to maquilas, in the case of a certain enterprise, the public prosecutor for human rights had identified violations of workers’ rights and reasonable indications of crimes by labour inspectors, but nothing had been done about it; and (7) the State continued to point to the creation of committees for legislative reforms that never materialized, despite the creation of hundreds of committees. Lastly, she requested that the conclusions in the case should be included in a special paragraph as an act of justice for all the workers who had become victims of anti-union violence in its various forms, including murder, dismissal, and being unable to find work because of having formed a trade union.

The Government representative reaffirmed that the Government of Guatemala was not tolerant towards, nor did it endeavour to incite individuals to threaten, physically harm or kill any citizen of Guatemala, targeting trade unions or union premises, and that it took seriously the duty of the State to safeguard private property as the right of the individual. He reiterated that the Office of the Public Prosecutor would undertake an internal restructuring with the creation of the Special Investigation Unit into Crimes against Trade Unionists. He added that the mission that had recently visited the country had observed in its conclusions that violence was generalized and that it affected trade unionists, employers and all Guatemalan citizens, and that there was not therefore any stigmatization of workers. The situation was of concern to the Government and it was making efforts to resolve it, as indicated by the magistrates who were present. With regard to the legitimacy of the Tripartite Commission for International Affairs, he indicated that its representative status could not be challenged, as the Ministry of Labour had published in the newspaper with the largest circulation the call for employers and workers on an equal footing to propose their representatives in a participatory manner. With reference to the number of labour inspectors, he indicated that there were now 214, which showed that the promise to increase their number had been kept. He noted that efforts were being made gradually, such as, for example, the changes in the Office of the Public Prosecutor. He expressed concern that the efforts that were being made by the Government could be described as a joke when they consisted of changes that required major efforts, with the collaboration of the ILO and the assistance of other organizations, and that some of them were the result of agreement reached in the Tripartite Commission. The work of the Commission that would revise the legislation would include following up the draft reforms to the Labour Code formulated by the Tripartite Commission with ILO assistance, which were known as the “Marin Draft”. He called for the Committee to support the Government, which he said would continue its efforts for the full application of the Convention. He added that a new generation of citizens of Guatemala were taking up high-level positions and that they had a vision of the country in which all sectors had to work together, especially in relation to national production, which involved a collective vision of progress.

The Employer members referred to the seriousness of the issue and expressed the unanimous concern of the Employers’ group. The Government of Guatemala had spoken of gradual changes, but it needed to demonstrate a more evident political will to strengthen the country’s institutions and to assess the progress made. According to the Government there had already been some progress, such as the creation of a special investigation unit and, hopefully, the provision of a budget and the adoption of measures to speed up procedures; but the Employer members hoped that the Government would take much more decisive action to put a stop to anti-union violence. They trusted that the efforts deployed in the Committee would not mean slowing the country’s economic development and investment and that the necessary legislative changes would come about through dialogue.

The Worker members welcomed the comments and encouraging remarks made by the different speakers towards the workers of Guatemala. All the legislative reforms recommended by the various ILO missions, the Committee of Experts, and the Conference Committee needed to be undertaken with the attentive assistance of the Office, and needed to have as their main objective the bringing into conformity of the country’s practice with Conventions Nos 87 and 98, and to guarantee workers that they could establish trade unions in full freedom, without any threat or pressure, in a climate free from fear. The Government also needed to undertake additional reforms on the following points: (1) a significant increase in the budget allocated to the Office of the Public Prosecutor, the Supreme Court of Justice, the police, and the labour inspectorate so as to make the action of the judiciary more rapid, effective, and independent; (2) the implementation of a profound fiscal reform so as to ensure the rule of law and strengthen the institutions responsible for the observance of human rights and trade union rights; (3) the effective reinstatement of all dismissed workers who won their appeals; (4) the guarantee of the ending of impunity so that perpetrators, instigators and accomplices of offences committed against persons defending trade union rights were arrested, brought to justice and convicted, which would mean that the acts committed against trade unionists were no longer systematically categorized as common law offences. Having taken due note of the good will expressed by the Government to establish a constructive and participatory dialogue, they emphasized the fact that all trade unions of Guatemala should be invited, especially the CUSG, CGTG and UNSITRAGUA, and that the invitation should be made public. They indicated that they trusted that the next report of the Committee of Experts would note the real progress on the different points raised. That would require the Government to embark rapidly on the necessary reforms with the relevant institutions, especially in consultation with workers’ organizations. In the meantime, the conclusions of the Conference Committee on the present case should appear in a special paragraph of its report.

The Employer members agreed with the proposal of the Worker members to include the conclusions in a special paragraphs of the Committee’s report.

Conclusions

The Committee noted the statements made by the Government representative and a magistrate of the Supreme Court of Justice, as well as the discussion that followed. It also noted the numerous cases examined by the Committee on Freedom of Association and that a high-level mission had visited Guatemala from 9 to 13 May 2011.

The Committee noted that the Committee of Experts continued to express deep concern at the following issues: the numerous serious acts of violence, including the murder of trade unionists and threats against them; legislative provisions and practices incompatible with the rights embodied in the Convention; and problems concerning the composition of the national tripartite commission. The Committee observed that the Committee of Experts had also noted the slowness and ineffectiveness of criminal procedures in relation to acts of violence, the excessive delays in judicial procedures and the lack of independence of the judicial authorities, all of which was giving rise to a serious situation of almost total impunity.

The Committee noted that the Government representative had indicated that his Government’s attitude was not one of tolerance, that it did not encourage people to threaten or endanger the life and physical integrity of any citizen of Guatemala, that it fulfilled its obligation to investigate acts of violence, and that under Agreement No. 49-2011 of 20 May 2011 it had established a Special Investigation Unit for Crimes against Trade Unionists. He had added that the Constitutional Court of Justice had amended Agreement No. 4-89 to ensure that proceedings relating to constitutional appeals for protection did not hinder the course of ordinary legal procedures. He had further stated that the Inter-Institutional Committee on Labour Relations had examined the country’s labour problems and that the efforts made were being reflected in a “roadmap” setting out dates and specific activities, which the Government of Guatemala was following by strengthening the implementation and enforcement of labour laws, and that there was an agreement by the General Secretariat of the Presidential Office which would appoint a Presidential Committee to study how the labour laws needed to be amended to fulfil the obligations deriving from the ILO Conventions ratified by Guatemala. The Government representative had emphasized that the Government’s call for the proposal of representatives of employers and workers for the national tripartite commission, which had been set up at the end of 2010, had been published in a widely read daily newspaper so that all organizations wishing to participate could do so. The Government representative had indicated that, in order to guarantee that the general labour inspectorate could carry out its activities without any hindrance in its access to workplaces, Ministerial Agreement No. 42-2011 set out the procedure to be followed in cases of resistance to labour inspection. He had also referred to the increase in the number of trade unions registered. Finally, the magistrate from the Supreme Court of Justice had provided full information on the measures to facilitate criminal and labour procedures and other measures for the restructuring of the judicial system.

The Committee noted that it was dealing with an important case that had been under discussion for many years and that the Government had received numerous technical assistance missions on the various pending issues. The Committee noted with deep concern the persistent climate of violence in the country and the growing degree of impunity. It further noted with deep concern that the climate of violence was generalized, that it affected trade unionists, entrepreneurs (28 murders in 2010, according to sources mentioned by the Employer members) and other categories, and that the figure of 53 trade union leaders and members murdered in recent years showed that they were a particularly vulnerable group.

The Committee recalled the importance of guaranteeing as a matter of urgency that trade unions and employers’ organizations and their representatives were able to carry out their activities in a climate that was free from fear, threats and violence, and of identifying those cases of violence committed for reasons related to their representative functions. The Committee considered that it was important to improve the climate for investment and economic growth which would also have a positive impact in combating impunity.

The Committee emphasized the need for all the necessary measures to be taken without delay so that the corresponding investigations could be conducted to determine those responsible for the acts of violence against trade union leaders and members, bring them to justice and punish them in accordance with the law. The Committee welcomed the recent establishment of the Special Investigation Unit for Crimes against Trade Unionists and trusted that it would be provided with the necessary resources to carry out investigations. It trusted that the International Commission against Impunity in Guatemala (CICIG) would, as the Government had promised the last mission to visit the country, collaborate with the Attorney General’s Office in investigating and resolving the 53 murders of trade union leaders and members. While noting the Government’s indications concerning the reform in the judicial system and of the measures to improve its functioning, the Committee stressed that further steps were needed to strengthen the judicial authorities, the police and the labour inspection services and provide them with greater human and financial resources. The Committee drew attention to the need for a reform with a view to reinforcing the rule of law and the institutions responsible for justice, as well as their independence.

The Committee recalled the intrinsic link that existed between freedom of association, democracy and respect for civil liberties, and especially the right to personal safety as a precondition for compliance with the Convention.

The Committee regretted to observe that, despite having received specific technical assistance from the ILO, there had been no significant progress in the legislative reforms called for by the Committee of Experts for many years. It trusted that the Government would in the very near future be in a position to provide information on concrete progress in that area. The Committee requested the Government to take steps to strengthen social dialogue and, in accordance with the conclusions of the high-level mission, to ensure the integration of the named representative trade union confederations in the national tripartite commission.

The Committee expressed its serious concern at the situation and noted the lack of clear and effective political will of the Government. The Committee considered that all measures needed to be taken on an urgent basis and in tripartite consultation to address all issues of violence and impunity. This should be done in full coordination with the state institutions concerned. ILO technical assistance should continue to be provided to enable the Government to address all legislative problems that were still pending with a view to achieving full conformity with the Convention.

The Committee emphasized the need to apply effectively, and without delay, court orders for the reinstatement of dismissed trade unionists.

The Committee requested the Government to send the Committee of Experts a detailed report this year containing information on all the points raised so that a full evaluation of the situation could be undertaken and expressed the firm hope that next year the Committee of Experts would be in a position to note substantial progress in the application of the Convention.

The Committee decided to include its conclusions in a special paragraph of its report.

Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

A Government representative indicated that, in view of the two natural disasters that had occurred recently in his country, the Minister of Labour and Social Welfare had not been able to attend the Conference, although the presence of two magistrates from the Supreme Court of Justice and the Chairperson of the Labour Commission of the Congress of the Republic bore witness to the commitment of the three authorities of the State on this subject.

He said that, following the conclusions of the Committee in 2009, the Government had repeatedly convened the Tripartite Commission on International Labour Matters to formulate the road map, but that, as unfortunately no agreement had been reached with the social partners, the Government had taken the decision to draw up the road map itself, with the technical assistance requested from the ILO. With regard to the comments of the Committee of Experts referring to the insufficient political will of the Government as the road map had been drawn up only a few days prior to the session of the Committee of Experts in 2009, he considered it necessary to make the following clarifications. The Government had requested ILO technical assistance on 2 July 2009. The Ministry of Labour had convened the social partners on five occasions, without achieving consensus. A technical assistance mission had taken place from 16 to 20 November 2009, at which time the Government had drawn up the road map on its own, although with the technical assistance of the ILO. The Committee of Experts stopped examining these facts, their role and the needs of the Office itself for the provision of the requested technical assistance. He then provided information on the action taken in relation to the cases before the Committee on Freedom of Association, the recommendations of the Committee of Experts and the strengthening of inter-institutional coordination mechanisms.

With regard to the cases before the Committee on Freedom of Association, he indicated that the International Affairs Unit had been strengthened with two further persons and a seminar had been held to raise awareness of the importance and the Government’s commitment with regard to international labour standards among those government institutions responsible for sending the replies to cases and reports. With reference to the recommendations of the Committee of Experts concerning legislative amendments, a proposal had been submitted to the ILO technical official as a follow-up to the technical assistance provided. In relation to the strengthening of the coordination mechanisms, he reported that the Multi-institutional Commission for Labour Relations in Guatemala had been reactivated to facilitate assistance to the investigation of crimes against trade unionists and to maintain the flow of institutional information.

Referring to the inadequacies of the General Labour Inspectorate, he noted that, with ILO assistance and support, a programme for its modernization had been initiated, 30 inspectors had been recruited and measures had been adopted to increase resources and recruit further inspectors. At present, three services were operating which had recuperated wage arrears and fines to the amount of $1.5 million.

With reference to the export processing sector, he indicated that an operation had been carried out by the labour inspectorate in 21 enterprises, in some of which violations had been reported and preventive measures outlined, while in others charges had been brought because inspectors had been refused entry. A total of 28 workers had been reinstated.

With regard to freedom of association, he reported that there were 356 registered trade union organizations, and that 70 unions and 45 collective labour accords had been registered in 2009, which were the highest figures for the past five years. With a view to promoting the right to organize, the Government had concluded agreements with educational institutions to train trade union leaders. It had been decided to establish a labour training school in the City of Guatemala and another in Quetzaltenango. He added that, in terms of the establishment and registration of unions, once the founders had complied with the legal requirements, they were recognized, their status approved, they were registered and the constituent act was published.

Between November 2009 and March 2010, the Government had established four tripartite social dialogue round tables, three of which were in the interior of the country. In May 2010 a “tripartite social dialogue meeting for decent work” had been held in the presence of the Director of the ILO Subregional Office. Guatemala was also the beneficiary of an ILO regional and subregional project on social dialogue.

With reference to the issue of impunity, he observed that impunity and generalized violence were matters of concern to the authorities and that there had been 6,000 murders during the course of 2009. With regard to the investigation of acts of violence against trade unionists, the Ministry of Labour was endeavouring to determine precisely whether or not the persons whose names appeared on complaints against the Government belonged to a union, the situation with regard to the legal action taken and the organization of which they were members. He added that in most reports it was found that the death was not due to reasons related to trade union activities. One of the greatest problems confronting the Government was that in many cases the complaints were put forward by de facto bodies, as a result of which the members were not recorded in the Labour Register of the Ministry of Labour, which therefore lacked essential information to determine whether the victims were members of unions.

He recalled that in October 2009 the new Supreme Court of Justice had become operational and had been informed, taking into account the respect for the independence of the powers of the State, of the need to improve the judicial system in order to address the issue of impunity and the crimes committed against unionized workers. The Supreme Court was taking action to accelerate procedures. In the case of the murder of Mr Pedro Zamora, the Office of the Public Prosecutor had appealed against the ruling of the first level court which had found the person charged innocent and the ruling of the second level court was awaited. The new Attorney-General had also requested certain measures to combat impunity.

With regard to legislative matters, he recalled that an intersectoral dialogue round table had been established to review the Civil Service Bill, which was still before Parliament, although the necessary consensus had not been reached.

He concluded that his country was implementing the road map, institutional strengthening and social dialogue. The ILO was providing continuous support for the action taken. Freedom of association and the right to organize were recognized and protected in law and practice. The establishment of trade unions was subject to compliance with the requirements set out in law and trade union and vocational training were being promoted. He added that he would provide information to the ILO in support of his statement.

The Worker members recalled the number of comments made by the Committee of Experts concerning Guatemala with regard to the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the number of cases examined by the Committee on Freedom of Association, ten of which were currently under examination, and the five high-level and direct contacts missions carried out in the country since 2005. Despite a tripartite agreement signed at the conclusion of a high-level mission in 2008, the absence of improvements in the functioning of justice was obvious. The resignation of the Director of the International Commission against Impunity in Guatemala (Mr Castresana) was cause for concern as it tended to indicate that he felt unable to accomplish his mission, because the Government had broken its commitment to combat impunity by appointing an Attorney-General linked to drug trafficking. This resignation was a great blow to the workers and the people of the country in general, who yearned for the rule of law. The Committee of Experts had itself denounced the slowness and inefficiency of the justice system.

An ILO technical assistance mission carried out in November 2009, in order to implement the recommendations of the Conference Committee, had not produced any results in the absence of consensus among the social partners. The road map adopted had very little substance and everybody agreed that social dialogue was in great difficulty in the country.

The attacks by the Government were so effective that the violence against the trade union movement had led to the weakening and restriction of the trade union movement. Violence, murders, discrimination, attacks, harassment towards trade unionists and their families were the daily reality of the trade union movement in Guatemala. To the point that after 24 years of democracy, the rate of trade union representation had fallen to 0.5 per cent.

Despite the promises made at the highest level, impunity remained the rule and took place in a subtle manner. The Government withdrew the recognition from trade union organizations which had nevertheless, in certain cases, participated in the work of this Committee, and as a result, the violent acts committed against the trade unionists were prosecuted simply as ordinary crimes. Moreover, when the harassment and murders of trade unionists became at last the subject of a judicial decision, their classification as ordinary offences made them trivial. Thus, the action of the judiciary raised questions as long as the Government did not show any willingness to respect the various conclusions and recommendations formulated by the Committee of Experts, the various missions and this Committee. The report of the Committee of Experts could seem measured in the face of such a desperate situation, but the problems raised showed clearly the violations of fundamental rights and civil liberties of trade unionists who demanded from the Government to act. The only comfort for the workers remained the constant attention that the ILO paid to their situation.

The Employer members observed that this case was being discussed in the Committee since the 1990s. Although initially the comments of the Committee of Experts on legislative issues had covered a whole page of its report, today, that list was much shorter. The Government had therefore demonstrated its willingness to address the issues over the years and had received many types of technical assistance from the ILO, including the bipartite high-level mission which had visited the country the previous year with the participation of the Worker and Employer Vice-Chairpersons of this Committee.

The observation of the Committee of Experts could be reduced to two sets of issues: impunity and legislative issues concerning the free establishment and functioning of trade unions. The question of impunity was very complex. It affected society as a whole and was not only directed against trade unionists as such. During the bipartite high-level mission, the Employer members had observed that a basic problem faced by the Government was the lack of resources to be devoted to fighting impunity, since taxes were a small share of the gross domestic product. There were not enough police officers, prosecutors, investigators, judges, etc., and more was needed to strengthen the judicial system in particular.

Following the 2009 session of the International Labour Conference, the Government had put together a road map to address the legislative issues on the basis of tripartite consensus. However, at this stage, it was not possible to reach conclusions as to the appropriateness or effectiveness of this road map. Certain obstacles to the establishment and activities of trade unions persisted. The statistics provided on trade union membership, if they were confirmed, referred to an astoundingly small percentage of trade union representation in the country.

In conclusion, the most important issue at this stage was the problem of impunity. The Employer members considered that the Government’s opening statement had accorded very little attention to this problem and that more information should be provided by the Government of its plans to address this problem.

A Worker member of Guatemala said that Guatemala had been the subject of similar observations by the Conference Committee, the Committee of Experts and the Committee on Freedom of Association, some of which were even more serious than those made between 1980 and 1995, during the war. He stated that Guatemala was failing to comply with almost all of its obligations before the various supervisory bodies and high-level missions. The tripartite agreements made as a result of the high-level missions in 2008 and 2009 had not been effective, as due follow-up had not been carried out under the road map.

The main problems were that the Office of the Public Prosecutor had not increased institutional capacity to deal with the serious acts of violence that occurred every day against trade unionists. The Office of the Special Prosecutor for crimes against trade unionists, which had come into being through the Committee, had been weakened and reduced to a special unit, with insufficient resources and working methods that did not take account of relevant factors in examining instances of anti-union discrimination. There was a reluctance to invoke anti-union discrimination. With a weak structure in place, the State was incapable of identifying obvious cases of violence against trade unionists, or of finding and punishing the culprits.

As a result of weak labour inspection services – there were only 15 labour inspectors within the metropolitan area – employers could destroy trade unions and prevent new ones from being formed with complete impunity.

There was no coordination among institutions. Trade unions had requested the promotion of the Multi-institutional Commission’s conflict resolution body, but to no avail. There was corruption and a lack of independence within the labour courts and other institutions, and action was taken in a fragmentary and unconcerned manner. The election of new courts of justice had not changed the situation, as many candidates vetoed by the unions for their anti-union attitudes were now magistrates. Export processing was a particularly vulnerable sector: a company was currently engaged in mass dismissals and acts of intimidation against trade unionists and their advisers. Additional legislative reform must also be undertaken, in line with the comments of the Committee of Experts.

In concluding, he said that, although the Government of Guatemala claimed not to pursue an anti-union policy, neither had it demonstrated that it had a policy of respecting freedom of association, as this Committee had borne witness for more than ten years. He therefore requested the Committee to include the case in a special paragraph drawing attention to the severity of the case, the lack of progress in fulfilling commitments, and the climate of widespread violence that had led to murders of trade unionists, intimidation, and the weakening of the individual guarantees that underpinned the exercise of freedom of association.

An observer representing the International Trade Union Confederation (ITUC) stated that for 15 years the Committee had been bringing to the attention of the Government serious problems with regard to Convention No. 87. Guatemala had the second highest number of active complaints before the Committee on Freedom of Association in the world. From 2005 to 2010, five highlevel missions and innumerable technical assistance missions had taken place. He emphasized that the Committee of Experts and other supervisory bodies had indicated that the situation had deteriorated.

Among the most serious violations which had recently become more frequent than ever, were: the obstacles to the creation and registration of trade union organizations, which took more than a year; serious acts of anti-union violence which remained unpunished; criminalization and stigmatization of trade union activity, lack of independence and effectiveness of the labour justice system reflected in excessive delays in the pronouncement of judgements and the reinstatement of trade unionists which took more than eight years, and lack of collective bargaining and effective social dialogue.

He emphasized that the situation was so serious that a few days ago, Mr Castresana, Head of the International Commission against Impunity in Guatemala had resigned, stating that there was nothing more he could do for Guatemala, given the lack of will by the Government to eradicate impunity and the designation of an Attorney General who was described by Mr Castresana as belonging to groups linked to organized crime and drug trafficking.

Since 2007, 47 trade unionists of the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG) had been assassinated without any progress by the justice system in the investigation; certain activists were seriously threatened like Lesbia Amezquita whose case had been examined by the Committee in 2009; the harassment against her had continued and even the Human Rights Ombudsperson had requested personal security measures which had not been provided. In March 2010, Luis Felipe Cho had been tortured and murdered after having received threats as a result of his trade union activities. Nevertheless, the Labour Ministry had indicated that Luis Felipe Cho was not a trade unionist. The speaker requested that the documents testifying the trade union registration of Luis Felipe Cho should appear in the records. He indicated that the programme for the protection of trade unionists was in the same state as the public prosecution service for crimes against trade unionists, to which the Government kept referring in each Conference although it had been abolished since 2005.

To conclude, he requested that the conclusions be included in a special paragraph with concrete proposals to resolve immediately the serious anti-union situation.

The Employer member of Guatemala regretted the lack of regional balance in the composition of the list of cases to be examined by the Committee, which affected the credibility of the supervisory system, especially when it was the result of reasons that had no place in the world of labour. In its observation, the Committee of Experts had referred to three basic questions: violence against trade union members; legislative issues; and problems that affected the export processing sector (maquilas), which in fact was the clothing and textile industry.

As for violence against trade union members, he reiterated the Employers’ commitment to investigate and identify responsibilities. In this respect some contacts have been made with the General Prosecutor of the Republic. Support had also been given to strengthening and professionalizing the labour inspection. However, it should be remembered that the climate of indiscriminate violence in the country had affected all the sectors of the population and that many of the acts of violence against trade union members could have had motivations other than their trade union activities. That should be taken into account, because it could not be confirmed that there existed a climate of anti-union violence in Guatemala. The existing low rate of trade union membership must not be attributed to those motives, but rather to the informality of the economy and the crisis in trade union leadership.

Some legislative aspects, such as the right to strike were not covered by Convention No. 87. He noted, however, that within the framework of the Tripartite Commission on International Labour Affairs, employers had been promoting changes in the system of strikes so that strikes could be declared more easily as long as they took into account the right of workers who did not support it to continue working. This initiative had not been supported by workers. As for the requirement of Guatemalan nationality in order to become a trade union leader, that was difficult to change because it would be necessary to change the Constitution.

The positive results of social dialogue, which allowed for a consensus on the need to reform the system of sanctions in cooperation with the ILO and pursuant to the guidelines agreed upon in the Tripartite Commission on International Labour Affairs, should be emphasized. It was hoped that the other pending legislative questions could be solved through social dialogue. As for the clothing and textile sector, he stressed that this sector represented 23 per cent of the country’s exports and 8 per cent of formal employment, and was one of the sectors that offered the best employment guarantees. He added that collective bargaining was carried out in that sector directly, without conflicts, between workers or their delegates and employers, resulting in greater benefits for workers and greater productivity for businesses. However, when there were conflicts, those were dealt with on two levels: first through voluntary mediation by the Centre for Alternative Resolution of Conflicts of VESTEX; and then through the general labour inspectorate.

The Government member of the Bolivarian Republic of Venezuela spoke on behalf of the Government members of the Committee Government members of the Group of Latin America and the Caribbean (GRULAC) countries. He observed that the Committee of Experts had noted that the Government had held consultations on the development of a road map but that consensus had not been reached between the workers’ and employers’ organizations. He nevertheless welcomed the fact that a road map had been developed in compliance with the Committee’s recommendations in June 2009. The GRULAC countries also drew attention to the technical assistance that the ILO had provided on the modernization of the country’s legislation and urged that the Government’s request be granted that all necessary assistance be made available rapidly and as an integrated package. The Government had shown its intention to collaborate by accepting the high-level mission in 2008, as well as other technical assistance missions.

The Government member of Belgium, speaking on behalf of Austria, Belgium, Germany and the Netherlands, declared that the Government of Guatemala had, since 1991, and up until 2010, been the subject of several observations of the Committee of Experts for non-observation of freedom of association. Since 2005, five high-level missions and several technical assistance programmes had been sent by the ILO to Guatemala without achieving concrete legislative results. A Tripartite National Commission for full implementation of the Convention as well as a road map had been established. The tripartite nature of that Commission must be preserved in order to guarantee the full participation of the social partners in that process. It was urgent that adequate measures be taken to punish those responsible for acts of violence committed against trade union members and that the results of the investigations carried out were made public. Through such steps, the Government would prove its political willingness to combat credibly violence committed against trade union members, to combat impunity and to adhere to the recommendations accepted by Guatemala within the framework of periodical review by the United Nations Human Rights Council. Creation by the Government of a committee of experts for nominating candidates for the Supreme Court could be favourably received, especially if the committee permitted the participation of civil society.

The Worker member of Colombia recalled that the present case had been examined on 14 occasions over the last 20 years for the same reasons. The Committee had adopted various recommendations that had been ignored by the Government. Consideration should be given to what measures the ILO could take in cases of persistent violence and harassment against trade unionists, impunity, legal and institutional obstacles to forming or joining trade unions, and lack of social dialogue. The measures taken so far by the ILO had not succeeded in improving the situation. What could be done in the face of a Government that, though professing goodwill, had not taken action to change the situation? The Employer and Worker members of the Committee should devise more effective measures. The situation could not be ignored and hoping that it would improve over the coming year was not sufficient. Deeper and more sincere political will was needed, based on democracy and effective social dialogue, to remove obstacles to the exercise of freedom of association. Such will did not exist in Guatemala.

The Government member of the United States, referring to a public submission that had been received in 2008, from the American Federation of Labour and Congress of Industrial Organizations (AFL-CIO) and six Guatemalan unions under the Labour Chapter of the United States–Dominican Republic–Central America Free Trade Agreement stated that her Government was reviewing many of the issues the Committee of Experts had been examining with regard to Guatemala’s application of the Convention. Effective enforcement of Guatemalan labour laws and the human and trade union rights of Guatemalan workers were a high priority for her Government. Her Government was disappointed by the lack of progress that had been made to date. The Government of Guatemala had acknowledged the serious challenges before it and had availed itself of ILO technical assistance on several occasions, including a number of high-level missions, the latest of which had led to the elaboration of a road map, prepared by the Government, that had outlined steps needed to be taken to address the observations of the Committee of Experts. In light of the ILO’s efforts to provide necessary assistance, it was especially troubling to note that the grave violence against trade unionists had not been stemmed, that the numerous shortcomings in the operation of the criminal justice system persisted and that the situation of impunity remained as serious as ever. There was a clear and continuing need to improve labour law enforcement to ensure that workers could establish organizations in full freedom, including in export processing zones, and that those organizations could plan and carry out their activities freely. She urged the Government to redouble its efforts, in close cooperation with the ILO and with the full involvement of the social partners, to bring about as soon as possible concrete and sustainable improvements with regard to all aspects of freedom of association and the right to organize in Guatemala.

The Worker member of Brazil drew attention to the long-unresolved legislative problems, which consisted of restrictions on the establishment of organizations, as half plus one of the number of workers at an enterprise was required; restriction of the right to freely elect union leaders, as they must be Guatemalan and work at the enterprise or in the same economic activity to be eligible for election; restriction of the free exercise of activities, given that a majority of workers were needed to declare a strike; the possibility of imposing compulsory arbitration in disputes in the public transport sector and fuel-related services; prohibition of solidarity strikes; and a bill requiring high percentages for the establishment of trade unions. Furthermore, official union registration had been delayed for up to a year and a half. The right of unions to join federations and confederations had also been obstructed. He highlighted in particular the situation of the Trade Union Confederation of Guatemala (UNSITRAGUA), which, though formed in 1985, had yet to be registered; the Government had recently, and with surprising rapidity, accepted the registration of a new federation with the same name, made up of four organizations of doubtful activity. Taking into account the background of violation of the Convention in various respects, a high-level mission in 2008 had approved a tripartite agreement to modernize legislation and bring it into line with the Convention. In addition, the Committee of Experts had taken note of the ongoing technical assistance in the country. Such measures, like the Government’s promises, had been repeated since the year 2000. The Committee, however, should not maintain the same attitude as it had for the last ten years.

The Employer member of Spain observed that the climate of increasing violence in Guatemala could be demonstrated by the deaths of more than 6,000 people, as had been indicated by the Government. The increase in drug trafficking was also a matter of concern. First, priority must therefore be given to ensuring a climate of stability and normality in all activities and to strengthening the fight against impunity. Second, it was important to identify and investigate whether acts of violence and crimes against trade unionists were a consequence of their union activities. Although some progress had been made with regard to constitutional protection (amparo), steps must be taken to expedite freedom of association proceedings and guarantee effective penalties. Third, the road map formulated by the Government was a positive step; it must be implemented as a priority in an incisive manner, in line with the conclusions of the two high-level missions. Fourth, it should be borne in mind that the issue involved the whole of Guatemalan society: not only did it require firm political will on the part of the authorities; but employers’ and trade union organizations must assume responsibility too. A constructive attitude, open to finding regulatory solutions and ready to work effectively against alleged acts of intimidation and violence, was key.

The Worker member of France stated that the gravity and the number of violations of trade union rights in Guatemala remained appalling, making it one of the most dangerous countries in the world for trade unionists. The types of crimes committed against both trade unionists and agricultural workers’ leaders stood out because of their cruelty and were allowed to happen, because they remained unpunished, and because trade unionists were seen as targets. Luis Felipe Cho had been tortured and brutally murdered after being threatened for carrying out trade union activities. His severely mutilated body was found on 6 March 2010. He was one of the six unionists from the real trade union movement, united in the MSICG, murdered since the beginning of 2010. He called upon the Government to bring the killers and instigators behind this murder to justice.

Referring to the conclusions this Committee made in 2009, he regretted that, since then, the situation had only degraded. The latest comments of the Committee of Experts were particularly severe when it concluded that the Government had failed to demonstrate sufficient political will to combat violence against trade union leaders and members and to combat impunity. The Committee of Experts also indicated that the conclusion of the Conference Committee concerning the lack of significant progress despite the repeated ILO missions and the very clear and firm recommendation of the ILO supervisory bodies, continued to be globally valid. Over the past 17 years, there had been technical missions and numerous reports from the Committee of Experts, recommendations from the Conference Committee and conclusions from the Committee on Freedom of Association. The latter had condemned the Government for letting the violence and impunity go on, and for refusing to cooperate with it. An international commission to combat impunity in Guatemala had been established. A road map had been drawn up last minute, but had not been implemented. The Government had refused to grant domestic workers the right to organize in trade unions. The Prosecution Service had not investigated crimes against trade union members, despite its commitment to do so. It was clear that, despite its declarations, the Government was unwilling to act to create a safer climate for trade unions, workers and peasants.

He expressed the hope that the Government would fully cooperate with its international partners and the ILO and was disappointed that no statement had been made by the European Union, which had been promoting and supporting human rights and democracy worldwide. He supported the request for a special paragraph on Guatemala in this year’s report and called on the ILO to give more publicity to the allegations made against the Government and its negative attitude.

The Government member of Panama supported the statement by GRULAC and recognized the Government’s efforts to apply the Convention and put into practice the Committee’s recommendations. Panama and Guatemala, as members of the Central American Integration System (SICA), recognized the importance of freedom of association as a basic human right, closely linked to freedom of expression, and the basis of democratic representation and governance. He therefore requested that all the requested assistance for effective application of the road map be provided to the Government.

The Worker member of Germany expressed his deep concern at the situation of trade unionists in Guatemala who continued to be exposed to harassment, physical violence and disappearances. He saw no improvement in this case: crimes committed against trade unionists had remained unpunished; impunity prevailed; labour laws continued to be violated and neglected; the registration of trade unions continued to be hindered; trade union activists were stigmatized and union members dismissed. Moreover, as an employer, the State itself had taken anti-union measures against its own employees, as was the case with the Gualpapa municipal service workers and workers of various ministries. The Guatemalan unions had repeatedly drawn the Committee’s attention to the many onerous anti-union practices that existed, including the blacklisting of union members and the requirement, when applying for a job, of indicating one’s membership in a union. The latter was found not only in the private sector but in state enterprises as well, although this clearly infringed upon the guarantees set out in the Constitution. He expressed profound dismay over the prevailing situation and called upon the government representatives of countries of the European Union (EU) to take a strong position with respect to workers’ rights in Central America; he urged that labour rights be enshrined in a special clause in the EU Association Agreement, together with an attendant mechanism to ensure compliance with those rights.

The Worker member of Spain said that Guatemala was a paradigm for the systematic violation of fundamental rights. Moreover, in addition to direct and extreme forms of anti-union violence (killings, kidnappings, rape, threats), other kinds of violence were perpetrated against freedom of association, such as the criminalization of trade union activities, the ineffective justice and labour inspection systems and the lack of protection against intimidation, discrimination and interference in trade union affairs or the refusal to recognize them. The purpose behind this was to destroy the independent trade union movement, as in the case of the MSICG which the Government had not accredited to the Conference. In addition to the other major problems facing Guatemala, such as the informal sector situation and the lack of equality between men and women, there was no social dialogue, as was evidenced by the adoption of a road map by the Government without consulting the social partners. The road map was adopted in November 2009, with most of the deadlines for adopting the measures falling on 31 December 2009 and some even before the adoption of the road map. Like every one of the Government’s other commitments to the supervisory bodies, the road map had not been respected. There was no political will to develop social dialogue. For all those reasons, he requested that the case be included in a special paragraph of the Committee’s report and urged that social dialogue be encouraged by compliance with the Convention, that the whole context of workers’ representation be revised so as to include representatives freely elected by the workers, and that the Government complied with the observations of the supervisory bodies.

The Worker member of the United States recalled that this case had been on the agenda of this Committee for the last 13 years and regretted that nearly all its conclusions and recommendations had been ignored by the Government. The Committee of Experts had made this point clear when it had referred to lack of political will. There were two types of ongoing impunity for which the Government was unmistakably responsible: the impunity in relation to the authors of violence committed against Guatemalan trade unionists; and the impunity in relation to the overall supervisory and standard-setting function of the ILO.

With regard to the first point, just in the last three years, there had been at least 40 unresolved cases of brutal assassination of trade unionists for having exercised their freedom of association and collective bargaining rights. This represented an increase as compared to the at least seven murders for the 2005–06 period. At least six killings had occurred in 2010, including the murder and dismemberment of Luis Felipe Cho and the murder of Pedro Antonio Garcia of the Municipal Workers of Malacatán in San Marcos. According to the 2009 Report on Human Rights of the United States State Department, despite some limited investigations by the Public Ministry, there had been absolutely no known progress in numerous cases of assassination of trade union leaders. The State Department had also reported that the suspect Valiente Garcia, arrested for the 2007 murder of Pedro Zamora, Puerto Quetzal Dock Workers Union General Secretary, had been acquitted and released, with a second suspect, Dremier Fuentes, remaining at large. In a meeting at the Guatemalan Embassy in Washington in 2009, the speaker indicated to have been informed that the Zamora assassination case had been satisfactorily resolved with the responsible parties investigated and pursued, following a complaint jointly filed by the Guatemalan trade union movement and the AFL-CIO pursuant to the Labour Chapter of the Dominican Republic–Central America–United States Free Trade Agreement. The 2009 ILO high-level mission had received evidence of “the general lack of independence of the judicial authorities and Government bodies” in relation to violent crimes committed against trade unionists. According to the 2010 ILO report on labour inspection in the Central American region, Guatemala had reduced its budgetary allocation for inspection. It had thereby further contributed to the impunity and had wilfully disregarded its commitment made in the Tripartite Commission following the conclusion of the 2008 ILO high-level mission.

The Government had also shown its contempt for the ILO supervisory bodies. According to the MSICG, a member of the Committee of Experts had attempted to meet with the Labour Ministry, the Supreme Court of Justice and the Prosecution Service of the Public Ministry, but had been ignored. In response to the concerns and findings of the Committee on Freedom of Association published in November 2009, the Government had completely evaded the Committee’s queries by stating that it had no knowledge of the existence of the complainant organization, MSICG, despite the fact that this organization consisted of ITUC affiliates, including the CGTG, CUSG and UNSITRAGUA. Accordingly, in March 2009, the Committee on Freedom of Association had expressed its concern at the Government’s dilatory responses in Case No. 2709, as well as its objections to the eligibility of the complainants. He therefore called for this case to be included in a special paragraph.

The Government representative stated that the main problems facing the country, as well as its society in general, were violence and impunity. Guatemala had requested assistance to combat impunity, which had resulted in the establishment of the International Commission against Impunity in Guatemala (CICIG) in 2007. The President of the CICIG had resigned just a few days earlier, after lodging complaints against the new Public Prosecutor. The President of the Republic had ordered that the complaints be investigated. However, the current situation had not affected the Government’s commitment to the CICIG, whose mandate continued to be in force and necessary and had to be strengthened.

With regard to the comment of the Worker members concerning the lack of substance of the road map, he noted that it had been drawn up with the assistance of the ILO and regretted that there had been no consensus in the Tripartite Committee. As for work in maquilas, the proposed amendments to the Labour Code contained provisions in this respect. The Government had repeated its request for technical assistance in, at least, reviewing the road map, as well as the issues of social dialogue, legislation and trade union training, and hoped that it could be rapidly made available as an integrated package and directed to the social partners and the Government. With respect to the labour training school, a project for which the Government had attempted to find sources of assistance, the Government representative signalled the inclusion of a component aimed at strengthening the capacity of trade unions to submit proposals. Regarding the judicial system, eight additional courts were operating, a new Appeals Chamber was due to be established and the recently revised Code of Penal Procedure was now in force and was speeding up procedures with the introduction of public hearings. The Legislature had committed itself to increasing the budget of the judicial authorities.

With regard to the murder of Pedro Zamora, the Public Prosecutor’s Office had appealed against the sentence handed down in the first instance, which had declared the person concerned innocent, and was awaiting the outcome. The next report of the Government would contain information on other pending issues.

The Worker members, after having heard the explanations given by the Government representative, asked specifically that the Committee’s conclusions appear in a special paragraph of its report. Including the conclusions in a special paragraph should serve to remind the Government, and the international community and the social partners as well, just how important was the full and complete exercise of freedom of association in strengthening democracy, notably in Guatemala. The Committee’s conclusions should mention the following points: (1) the promulgation of a law guaranteeing all workers, including workers in the public sector, the effective exercise of freedom of association in accordance with Convention No. 87; (2) the inclusion within the law on the protection of rights (ley de amparo) of a recourse along the lines of that provided for in article 25 of the American Convention on Human Rights, of which Guatemala was a signatory; (3) the amendment of the national legislation so that the observations of the ILO supervisory bodies could be invoked as binding provisions; (4) the immediate reinstatement of all trade unionists who had been suspended by the country’s state institutions; (5) the strengthening of social dialogue by means of a redefinition of all the workers’ representative institutions, and guaranteed access to those institutions for all freely elected representatives of all workers’ organizations in the country, in accordance with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144); (6) the registration of UNSITRAGUA, which like other trade unions has been seeking registration for over a year; (7) an increase in the financial resources of the labour inspectorate so that it could monitor effective compliance with the country’s labour legislation; and (8) the proper functioning of the machinery for protecting trade unionists and defenders of freedom of association and other human rights.

The Employer members stated that this case was important. However, they disagreed with the Worker members that the case merited a special paragraph in the Committee’s report. The Government, over many years, had taken advantage of technical assistance, and had made improvements to the labour legislation. However, two key issues remained: impunity and legislative gaps concerning interference with the activities of workers’ organizations which prevented them from operating in full freedom. Technical assistance had been provided on these two subjects, including visits from the Worker and Employer Vice-Chairpersons of this Committee, although nothing seemed to have worked. Impunity continued to be a problem, which affected all members of society, including trade unions. They emphasized the need to think of solutions beyond the standard tools used by the ILO to address the issues. The Employer members proposed sending an important and recognized personality to Guatemala, with high-level ILO support, to study the situation and make recommendations regarding impunity.

The Worker members emphasized that this was a very serious case and that the conclusions adopted were well drafted. It was nonetheless difficult to understand why the Employer members refused to include this case in a special paragraph of the Committee’s report. Economic interests should not prevail over fundamental social rights. The Worker members stated that they had considered not accepting these conclusions. However, as they were aware of the danger this would represent for the ILO’s supervisory system, the conclusions had been adopted even though they were not included in a special paragraph.

Conclusions

The Committee noted the Government representative’s statement and the discussion that followed, as well as the numerous cases examined by the Committee on Freedom of Association.

The Committee noted that the Committee of Experts continued to raise with concern the following issues: numerous serious acts of violence, including murders and threats against trade union members; the stigmatization of trade unions; and legislative provisions and practices that were not in conformity with the rights set out in the Convention. The Committee of Experts had also noted the ineffectiveness of criminal procedures in relation to acts of violence, excessive delays in the judicial procedures and the lack of independence of the judicial authorities which was giving rise to a serious situation of impunity.

The Committee noted the indication by the Government representative that the situation of violence and impunity was generalized and did not exclusively affect the trade union movement. The Government had requested the support of the United Nations to combat impunity and the International Commission against Impunity in Guatemala (CICIG) had been established for that purpose. The Government had requested reports to determine whether or not the murders of trade unionists referred to were due to reasons related to trade union activities. The Government had on many occasions requested ILO technical assistance in relation to all of the problems raised, including violence, impunity and the legislative changes requested, as well as the drawing up of the road map. The Government representative stated that tripartite social dialogue had been taking place in the National Tripartite Commission and that four tripartite dialogue round tables had been created at the regional level. He indicated that, following the latest ILO high-level mission, inter-institutional coordination mechanisms had been strengthened. In addition, action had been undertaken for the reinstatement of workers in export processing zones. Training activities had been carried out and the decision had been taken to establish two labour training schools. He stated that, although measures had been taken to reinforce the labour inspection services and the unit in the ministry responsible for relations with the ILO, further technical assistance from the ILO was needed.

The Committee noted that this was an important case that had been discussed for many years and that the Government had received numerous technical assistance missions with a view to bringing the law and practice into conformity with the Convention.

The Committee noted with deep concern that the situation of violence and impunity appeared to have worsened and recalled the importance of guaranteeing on an urgent basis that workers were able to carry out their trade union activities in a climate free from fear, threats and violence. It noted further with concern that the Commissioner of the CICIG resigned on 7 June 2010. The Committee urged the Government to take the necessary measures to ensure the effective operation of schemes for the protection of trade unionists and defenders of freedom of association and other human rights.

The Committee noted with concern that the Government had not shown sufficient political will to take action to combat violence against trade union leaders and members and to combat impunity. The Committee emphasized the need to make substantial progress in sentencing in relation to acts of violence against trade unionists and in ensuring that, not only the direct authors of the crime, but also the instigators were punished. The Committee requested the Government to intensify its efforts to bring an end to impunity, including by considerably increasing the budgetary resources allocated to the judiciary, the prosecutors, the police and the labour inspectorate.

Also observing with concern the generalized climate of violence, the Committee recalled that freedom of association could not be exercised in a climate where personal safety and basic civil liberties were not guaranteed. The Committee urged the Government to ensure simple and prompt recourse or any other effective recourse to competent courts or tribunals for protection against acts that were in violation of fundamental rights.

The Committee requested the Government to take measures to strengthen social dialogue, redefine the representation bodies and guarantee access for workers’ representatives that have been freely elected by the organizations existing in the country, in accordance with the comments of the supervisory bodies. In this regard, the Committee requested the Government to clarify the situation of the Trade Union Confederation of Guatemala (UNSITRAGUA) without delay, with ILO assistance.

The Committee considered that innovative solutions needed to be examined with a view to addressing as a priority the issue of impunity and the pending legislative questions. The Committee requested the Government to accept the possibility of the visit of an important international public figure, accompanied by the ILO at a high level, to examine these matters and make recommendations.

The Committee requested the Government to provide a detailed report to the Committee of Experts this year with information on tangible progress on all the above matters and expressed the firm hope that it would be in a position to note substantial improvements in the application of the Convention next year.

The Worker members emphasized that this was a very serious case and that the conclusions adopted were well drafted. It was nonetheless difficult to understand why the Employer members refused to include this case in a special paragraph of the Committee’s report. Economic interests should not prevail over fundamental social rights. The Worker members stated that they had considered not accepting these conclusions. However, as they were aware of the danger this would represent for the ILO’s supervisory system, the conclusions had been adopted even though they were not included in a special paragraph.

Individual Case (CAS) - Discussion: 2009, Publication: 98th ILC session (2009)

A Government representative recalled that his Government had accepted the visit of a high-level mission of the ILO and thanked the Employer and the Worker Vice-Chairpersons for their participation in this mission. As could be observed by the members of the high-level mission, progress had been made in a number of cases that had been dealt with for many years such as violations of freedom of association and the right to organize. In this regard, his Government was committed to continue its efforts to obtain more positive results in those cases that had been denounced by the ILO supervisory mechanism.

During the mandate of the new Government, there had been no cases of persecution of unions and his Government was trying to resolve those cases that had occurred in previous years. Consequently, the Government could not be blamed for failing to comply with the provisions of Convention No. 87.

During the 97th session of the Conference, the Government had been accused, among others, of not having demonstrated the political will to resolve cases such as the assassination of the trade unionist Pedro Zamora of the Trade Union of Workers of Puerto Quetzal, and of not encouraging collective bargaining. The high-level mission was able to verify significant achievements in various areas: one person had already been indicted for the assassination of Pedro Zamora, collective bargaining was a state policy of the present Government, etc. In addition, social dialogue was a constant motivation of the present Government and there existed forums for permanent dialogue such as the Conflict Resolution Table for State Employees.

The speaker said that it was important to highlight that through this constant dialogue, important reforms of the Labour Code were examined with the support of the ILO with a view to amending some of the sections that referred, among others, to the certification of trade unions, the prescriptions regarding the constitutive instrument, the functioning and the composition of their executive bodies and the conditions for declaring a strike legal. With respect to the establishment and registration of trade unions in the export processing zones (maquilas), he indicated that it was important to highlight that the present Government did not penalize nor stigmatize any trade union action, or any trade union, independently of the lawful action concerned. As long as they complied with the requirements provided for in national legislation and international Conventions ratified by Guatemala, trade union action was considered a priority to obtain legal recognition and to be operational.

He reaffirmed that the Government did not have any policy aimed at limiting the exercise of freedom of association nor the legal establishment of trade unions. In conclusion, he expressed his thanks for having been given the opportunity to explain that certain criminal facts had been elucidated, and to inform the Committee of his Government's firm intention to advance freedom of association and social dialogue as suitable tools in the search for consensus. His Government was mindful of the fact that only through those mechanisms it was possible to achieve full development of the people and to generate more opportunities for decent work.

The Employer members expressed appreciation for the hospitality and transparency shown to the ILO high-level bipartite visit to Guatemala in February 2009. The case of Guatemala had been examined by the Committee on 11 previous occasions, and significant efforts had been made by the Government and the ILO, which had provided resources and technical assistance. Previous discussion of the case had resulted in the high-level mission to the country in 2008 and the bipartite visit in 2009, undertaken in the context of the straightforward observations made by the Committee of Experts, which could be divided into two main categories: the issue of impunity with respect to acts against both unionists and other members of society and legal issues such as restrictions on establishing and registering trade unions, and on organizations of activities by workers, legislation relating to the establishment of public sector unions, slowness of justice, etc. The situation with regard to impunity had evidently become more severe since the high-level mission in February 2009. The Conference Committee had repeatedly emphasized that genuine freedom of association and trade union rights were incompatible with a climate of fear, violence and murder. The Employer members therefore expressed concern in that regard.

They recalled that the high-level visit in February 2009 had suggested that the problems were partly due to the lack of sufficient resources available to the Government to take all the necessary steps to implement Convention No. 87 in law and in practice, given that the country's total tax revenue was only 11 per cent of its gross domestic product. Meetings with the Tripartite National Committee during the high-level visit had revealed that the Committee was functioning and dealt with a range of serious issues, although its mandate could be extended. Nevertheless, despite all the efforts made, much progress remained to be done for the implementation of Convention No. 87, and the situation was not encouraging. A strategy on how to proceed was needed, as punitive measures against the Government were not appropriate. The Employer members concluded that concerted actions by the various parties, including the Conference Committee, were needed in working towards the establishment of effective freedom of association in Guatemala.

The Worker members considered that the core of the discussion was the follow-up of the Government on the declaration of the tripartite high-level mission which had visited Guatemala from 16 to 20 February 2009 with a view to assisting the country to find sustainable solutions to the problems indicated by the Conference in 2008: violence against trade unionists, including death threats and murders; urgency in adopting additional measures to end this violence; and the impunity for crimes committed against trade unionists and legislative provisions contravening Convention No. 87.

They recalled that the high-level mission had focused on three problems: impunity for crimes committed against trade unionists, effectiveness of the law in this context, and effective implementation of freedom of association. They highlighted the necessity to provide the Office of the Public Prosecutor with sufficient and duly trained personnel, and stressed the need to allocate additional resources for programmes for protection of trade unionists and witnesses. The high-level mission had made an uncompromising statement on the lack of independence of the judiciary. It had acknowledged the very low union affiliation rate and very limited number of collective agreements in force, the numerous restrictions affecting freedom of association in the industries in the export processing zones, and the extremely weak labour inspection in spite of the statements made by the Government in 2008. Observing that in Guatemala, people commonly had associated trade union activities with criminal activities, the mission had called on the Government to take concrete measures to stop trade unionism from being stigmatized.

They recalled that the Committee of Experts itself had underlined for many years the persistence of these acts of violence, the impunity around them and also the resistance in the labour legislation of provisions in contravention with Convention No. 87, namely: restrictions concerning the nomination of workers' representatives, restrictions concerning the exercise of trade union activities and the absence of freedom of association in the public sector. Considering that there had been a high-level mission in 2008, which had led to a tripartite agreement and then another one in 2009, that had given rise to a declaration, and that the question of the application of Conventions Nos 87 and 98 in Guatemala had been on the agenda of this Committee for more than 20 years, the Worker members requested that the conclusions would state that this case would appear in a special paragraph of the report of the Committee.

The Government member of the United States, referring to a public submission that had been received in 2008 from the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and six Guatemalan unions under the Labour Chapter of the Dominican Republic-Central America-United States Free Trade Agreement, stated that her Government was reviewing many of the issues that had been examined by the Committee of Experts in its observation. She shared the Committee's deep concern at the acts of violence against trade union leaders and members, and urged the Government to undertake fully the steps recommended by the Committee of Experts in order to guarantee full respect for the human rights of trade unionists. The Government was particularly urged to provide additional resources to the Special Prosecutor's Office for Offences against Trade Unionists and Journalists.

The Government had acknowledged the serious challenges before it and had availed itself of ILO technical assistance on several occasions, including a number of high-level missions; the most recently had taken place in February 2009 by the Worker and Employer Vice-Chairpersons of this Committee. While the Government had established mechanisms for addressing the issue of violence and impunity and resolving numerous long-standing deficiencies in the labour legislation, much remained to be done. She encouraged the Government to redouble its efforts - focusing not only on specific cases, but also on systematic improvements - in close cooperation with the ILO and with full involvement of the social partners, so that concrete progress in law and in practice could be noted in the very near future.

The Government member of Spain said that she was not going to highlight, once again, the violence against trade unionists in Guatemala, as the reports gave evidence enough for the Government to adopt the necessary measures to resolve this problem.

She emphasized, however, the importance of freedom of association, as enshrined in Convention No. 98, for the existence of democracy and recalled that the three levels of its components, namely, the right to establish trade unions, the right to draw up their constitutions, and the right to organize their activities, including the right to strike, were closely inter-related, insofar as if one of them failed, the other two could not function. This was what was happening with the right to form trade unions.

The Committee of Experts' report implied that administrative requirements and demands in Guatemala resulted in unjustifiable and serious restrictions to the right to form trade unions, a situation that was all the more serious considering that the obstacles concerned were being applied in a context of violence against trade union representatives.

She stated that her country was confident that, with ILO technical assistance and international cooperation, all the administrative obstacles impeding the formation of trade unions and the right to organize could be removed, since, as the high-level mission of the ILO had indicated, trade union organizations played a fundamental role in the social and economic development of societies and were closely linked to the consolidation of democracy. In conclusion, she said that employers, workers and the Government should work together to emulate the principle of freedom of association in their country.

The Government member of Belgium expressed grave concern about the situation in Guatemala as reflected in the report of the Committee of Experts, especially with respect to the acts of violence against trade unionists. His Government hoped that the positive elements which had emerged following the high-level mission would materialize through the effective application of Conventions Nos 87 and 98, which were key instruments for the improvement of social policy and, thus, for social justice. The implementation of all social policies involved the integration of social dialogue in the functioning of the State, and led to broader social protection, effective labour administration and the realization of rule of law. The speaker concluded stating that his Government hoped that all measures recommended by the Office would be implemented, and fully supported technical cooperation activities for the benefit of Guatemala.

A Worker member of Guatemala drew attention to the fact that, for nine consecutive years, the Government had received comments from the Committee of Experts concerning problems with the application of Convention No. 87. Those problems involved the most flagrant violations of the fundamental rights of the country's workers.

Among the facts that the Committee of Experts had most often highlighted were acts of anti-union violence, including murder and kidnapping, and the lack of freedom of association in export processing zones and enterprises, where it was impossible to form a trade union. Workers in such enterprises were not allowed to be pregnant, to urinate more than twice a day, get up to drink water during the working day, submit complaints or miss a single day's work due to illness, as those were all legitimate causes of dismissal for Guatemalan women working in textile companies.

Over the last 20 years, various Governments had indicated their political will to solve the problem of freedom of association, and the current Government continued to make such promises. The Government had also made other commitments and statements to the same effect. Furthermore, the President of the Republic, Álvaro Colom Caballeros, at the International Trade Union Conference against impunity organized by the International Trade Union Confederation in Guatemala in January 2008, had promised to end problems connected with freedom of association.

The speaker expressed concern about the fact that the Government was trying to take advantage of the good faith of the international community by saying that progress was being made thanks to the creation of eight labour courts and the strengthening of the Special Office for Offences against Journalists and Trade Unionists, which did not function in practice. He said that the situation with regard to freedom of association in the country was becoming more and more serious and cited, as an example, one case of kidnapping and another in which threats had been made.

The speaker recalled that the Employer and the Worker Vice-Chairpersons, who had been part of the high-level mission to Guatemala in 2009, had been informed regarding the murder of 26 trade unionists and other acts of violence against trade unionists that had taken place in Guatemala. The visit had enabled them to see that the issues raised continued to be very serious, particularly the entrenched climate of impunity and violence against trade union leaders and members, without any legal proceedings or convictions in recent years.

The Worker member of Germany highlighted the situation of extreme anti-union violence and impunity in Guatemala. Despite the new Government's promise to address the situation, no improvements had been noticed. Since January 2008, 26 trade unionists had been murdered, with an additional 24 cases of threats, 62 instances of criminalization of trade union activities, three kidnappings and five assassination attempts. In this regard, the speaker noted with relief that her Guatemalan colleague Mr Efrén Sandoval was in good health and participating in the Conference as an observer representing the ITUC. In view of the above, she did not find it surprising that the percentage of trade union organization in Guatemala was at only 0.5 per cent of the working population.

The problem of anti-union violence was closely linked to the issue of impunity; 98 per cent of the offences in Guatemala remained unpunished. The perpetrators of anti-union acts of violence did not face any consequences, which was mainly due to the inefficiency of the judicial system. It could only be deplored that justice in Guatemala only existed for those who could afford it.

The speaker further reported that, in January 2009, the labour movement of farmers and indigenous peoples that constituted the main target of anti-union attacks, had submitted a set of concrete demands to the relevant ministry and the Office of the Public Prosecutor. Amongst other things, the trade unionists had asked for a detailed report on the state of investigation of recent assassinations and a report on the factors impeding prosecution, and for a meeting with the relevant ministry to discuss a policy of prevention, identification and punishment of perpetrators. The fact that the Government had not even considered necessary to respond to this initiative, illustrated that the problem was not only due to lack of capacity but also to the lack of political will of the Government.

In view of the systematic violation of human rights, workers' and trade unions' rights, she stated that the DGB supported the Guatemalan trade unions in their cry for help directed to the European Union, the ILO and European workers' organizations, and also endorsed the extension of the mandate of the International Commission against Impunity (CICIG). Lastly, the DGB would suggest the insertion of a chapter on labour and social issues into the EU Association Agreement, which should include respect for the fundamental ILO Conventions as well as a mechanism for monitoring and assessing compliance.

Another Worker member of Guatemala said that, for many years, representatives of governments and production sectors throughout the world had listened to the Government talking about progress made with respect to freedom of association in Guatemala. However, during those same years, there had been a fall in the rate of unionization that had left trade unions representing only 0.5 per cent of the economically active population. In Guatemala, trade union activity faced more obstacles every day. The high-level mission that had visited the country in February 2009, had grouped these problems into three broad areas: impunity; lack of conditions for the exercise of freedom of association; and the ineffectiveness of the judicial system. Impunity was not rooted in the existence or non-existence of courts, but in the failure to apply national legislation and Convention No. 87, which Guatemala had ratified in 1952.

With regard to violence against trade unionists, he stated that, since 2007, 26 members of the Indigenous and Rural Workers Trade Union Movement of Guatemala had been murdered, but the culprits had not yet been arrested. Disguised labour relations, blacklisting, anti-union dismissals, corruption and the ineffectiveness of both labour inspection and the courts were just some of the problems facing trade unionists. Some years ago, the ILO had requested the removal of mechanisms for supervising trade unions but the present Government had introduced more supervisory mechanisms. This did not only restrict the freedom to join trade unions, but also restricted the areas in which trade unions acted independently, replacing unions with government bodies such as the Tripartite Committee on International Affairs, which had become the Government's main tool for signing agreements on apparent solutions to existing problems which were intended solely to confuse the international community.

He said that, in these circumstances, the trade unions could but request a special paragraph on Guatemala that:

(a) set out the concerns of the Committee regarding the lack of freedom of association in Guatemala;

(b) expressed regret that the technical support provided in recent years had not resulted in any objective improvement of conditions for the exercise of freedom of association;

(c) requested the Government to take measures to ensure freedom of association, and the courts of justice to adopt, in their application of Convention No. 87 and national legislation, the interpretation criteria issued by the Committee on Freedom of Association in its Digest of decisions and principles of the Freedom of Association Committee;

(d) requested the Government to take the appropriate measures to guarantee the physical security and life of leaders of organizations belonging to the Indigenous and Rural Workers Trade Union Movement of Guatemala and its work teams.

The Worker member of the United States indicated that while the reports concerning this case had always been consistent, fair and unambiguous, the events in Guatemala failed to live up to the provisions of Convention No. 87 and shocked the conscience. The egregious and wilful nature of impunity could not be reconciled with neither Convention No. 87 nor the existing Guatemalan law. The general climate of violence, whether focusing specifically on trade unionists or the general population, had a chilling effect on those who attempted to exercise their rights, such as the right to associate freely or the right to speak out publicly.

The Committee of Experts had, on more than one occasion, expressed the hope that in the near future "significant progress" would be made in particular with respect to the tripartite agreement concluded during the high-level visit. Tangible evidence should be provided that impunity was met with accountability and the rule of law and that workers were allowed to organize without fear or intimidation.

The speaker denounced existing employer tactics aimed at slowing down freedom of association of workers, such as retaliation, termination, harassment and the establishment of company unions designed to undermine existing legally formed unions; but also, bankruptcies, ownership substitution and re-registration of companies by employers seeking to circumvent their legal obligation to recognize newly formed or established unions. Blacklisting of union organizers, threats of factory closures, refusal to permit labour inspectors to enter facilities to investigate worker complaints, and refusal to reinstate wrongfully dismissed union organizers were also commonplace.

Government institutions had tolerated these practices, many of which could and should be addressed under existing law. Even worse, delays in processing legal complaints had rendered workers defenceless and employers immune from meaningful accountability. Most workers, including those organized in trade unions, did not have collective agreements concerning their wages and working conditions nor did they have individual contracts as required by law.

In instances where workers advocated their legal rights, employers subverted labour laws by taking advantage of back-logs, delays and the overall incompetence in the delivery of justice, the lack of prosecution and a lack of a functional independent judiciary. Particularly troublesome was the realization that before, during and after the high-level visit in 2009, trade unionists had been threatened, attacked and murdered. This was illustrated by the killing of an active member of the Union of Banana Workers of Izabel while at his workplace, which occurred a week after the Union had met with the Government to complain about threats against a union member.

Turning to the issue of enforcement, he pointed out that despite several recent efforts by the Government to improve enforcement of labour laws, the ability to follow through was virtually non-existent. Labour leaders had reported receiving death threats and were being targets of other acts of intimidation, but there had been only one conviction for a crime against trade unionists. The authorities responsible for protecting citizens against violations of the law were understaffed and underfunded and pressure was put on labour inspectors to rule in the employer's favour. In the view of the organized labour in Guatemala, the restructuring of the Special Prosecutors' Unit for Crimes against Journalists and Unionists reflected a reduced commitment to prosecuting crimes against unionists.

He concluded by stating that compliance with Convention No. 87 did not call for governments or employers to commit acts of largess; rather freedom of association and the right to organize was the core enabling right, essential to the meaningful attainment of all other rights at work. The Report of the Committee of Experts had reminded us that "(r)espect for freedom of association at the workplace (did go) hand in hand with respect for the basic civil liberties and human rights inherent to human dignity".

The Government member of Uruguay, speaking on behalf of the Group of Latin America and the Caribbean (GRULAC), thanked the Government, the Employer and the Worker members for their statements. He declared that the Government of Guatemala had illustrated, in its intervention, that it had made efforts to improve national conditions to ensure the full application of Convention No. 87, by means of actions that were already being implemented for some time; the most recent being the acceptance of a high-level mission in February 2009. In this regard, the speaker asked the Conference Committee and the Office to continue to provide the technical assistance requested by the Government and to ensure that such assistance was timely and appropriate to achieving the purpose. GRULAC considered that a country such as Guatemala that had relentlessly collaborated with the ILO for several years, should be conceded the time necessary to ensure that its initiatives and the technical assistance received from the Office could produce an impact.

Furthermore, the speaker noted once again that a number of countries in the region had been called upon to appear before the Conference Committee, albeit countries cooperating with the supervisory bodies and making efforts, at national level, to ensure the full application of workers' rights. GRULAC expressed concern about what seemed to be a constant that continued to carry on endlessly, to the detriment of the examination by the Conference Committee of serious situations in other parts of the world. Finally, GRULAC acknowledged certain improvements in the working methods of the Conference Committee but a lot remained to be done, in particular as regards transparency and objectivity of the selection criteria for work in this Committee.

The Worker member of Colombia stated that, while the Government representatives had made promises concerning freedom of association, the application of Convention No. 87 in this Central American country remained an illusion, insofar as the low degree of unionization illustrated that the Government and employers impeded on trade union activities.

The speaker found it discouraging that, despite the efforts made by the ILO including the high-level mission, the situation had not changed and that, in practical terms, the development of Guatemalan trade unionism continued being bogged down both by the reservations of the workers to affiliate due to the fear of losing their lives or jobs, and by the existing obstacles to establish new organizations or strengthen existing ones.

The speaker hoped that the required prerequisites to establish a workers' organization, the need for registration, and the accumulation of restrictions of the right to collective bargaining would not go unnoticed by the international community. In this regard, he felt that there was no justification that in Guatemala, a country that had ratified Convention No. 87 in 1952, more than 50 years ago, workers could not exercise their right to unionize, and the degree of trade union organization did not exceed the absurd percentage of one per cent of the active population. In addition, economic interests including the current system of tariff preferences also had a bearing on the situation in Guatemala.

The speaker invited the Government and the Guatemalan employers, in the interest of democracy and the establishment of a social rule of law, to provide the necessary guarantees to enable the workers to exercise their rights to unionization and collective bargaining. Lastly, he proposed that the conclusions of the present case should appear in a special paragraph so that the Government and employers did not forget the pledges made to the ILO.

The Government representative of Guatemala found it only natural for the Worker members to deplore the low number of trade unions existing in Guatemala. Nonetheless, the Government wished to point out that the scarcity of workers' organizations was not due to any Government policy intending to impede on the establishment of trade unions. He expressed the hope of his Government that progress would be accomplished with respect to the Guatemalan legislative reform in the previously mentioned areas, in particular, regarding the provisions of the Labour Code on freedom of association. He mentioned that he was accompanied by two members of the Executive Council of the Congress of the Republic to demonstrate the Government's willingness to bring about reforms.

The speaker stressed that the ILO was cognisant of the Government's attempts to put social dialogue into practice. However, on some occasions, the Government had faced the refusal of certain sectors, and dialogue necessitated more than one party. Moreover, the Government did not determine the composition of the Tripartite Commission on its own, given that it was constituted of three parts.

He asked the Conference Committee to formulate and adopt clear and well-defined strategies, since the full application of Convention No. 87 could not wait for another 50 years. The speaker also requested technical and financial assistance from the ILO and, and also asked for the commitment of the members of the Conference Committee to supporting vigorously Central American countries, in particular Guatemala, in order to achieve conformity with the Convention. The Government was ready to spare no effort to attain that objective. As regards the issue of maquilas, the Government emphasized that a joint commission had been set up to try to find solutions. At the beginning of 2008, 20,000 workers of one of the most significant maquilas of the country had lost their jobs due to delocalization. Now the maquila had returned to Guatemala, and every effort was made to reemploy the maximum number of workers.

The Government did not close the door upon any person respecting the Guatemalan legislation and international standards. The speaker further expressed regret that, for so many years, his country had appeared on the list of countries not fully applying Convention No. 87. Lastly, he concluded that it would be appropriate to strengthen the Tripartite Commission, since the vital legislative reforms were being elaborated in the framework of that tripartite body.

The Employer members thanked the Government for the information provided. The present case dealt with numerous issues, of which the most fundamental related to impunity. They recalled that the Conference Committee had usually reserved the special paragraph for cases where the Government had failed to take any measures or was not cooperating. In the Employer members' view, this was not the case of Guatemala. The high-level mission had concluded that the Government had allocated human and budgetary resources to prosecution and judicial administration to address impunity of anti-union violence. It was evident that more resources were needed and that legislation was required to address the issues of implementation identified by the Committee of Experts. However, during the long history of the present case, the Government had taken constructive steps and had adopted a positive attitude. The number of issues had been gradually reduced.

The Employer members recalled the general consensus that had emerged during the high-level mission. Accordingly, priority attention should be given to the following three main issues: (i) impunity in relation to violence against trade unionists; (ii) effectiveness of the judicial system; and (iii) implementation of freedom of association. The representativeness of the Tripartite Commission was also a matter of concern. The high-level mission had concluded that the above mentioned areas needed to be addressed on a priority basis and that concrete progress in this regard should be noted before the next session of the Conference. To this end, the mission had proposed that follow-up at regular intervals be carried out by the ILO to provide technical assistance and to assess the progress achieved. The Employer members felt that the latter recommendation had not yet been put into practice and emphasized the need to do so before adopting a special paragraph.

The Worker members highlighted that this case had been under the attention of the ILO supervisory bodies for more than 20 years. Therefore, the Government had had ample time to take the necessary measures to adapt its legislation and practice to the principles contained in Convention No. 87. However, the Government had done nothing and the situation continued to deteriorate. They acknowledged that the Government made practically no use of the technical assistance which the Office had already provided. The Worker members hoped that the four components of the declaration issued by the high-level mission in 2009 - increasing the capacity of the courts against violence against trade unionists, improving the effectiveness and independence of the judiciary, reinforcing the means of labour inspection, concrete action against the stigmatization of trade unionists - would be monitored by means of a report which the Government would submit to the Committee of Experts at its session of November 2009, and which the Conference Committee would take up in 2010. Finally, the Worker members requested that the conclusions would state that this case would be included in a special paragraph of the report of the Committee.

Conclusions

The Committee took note of the Government representative's statement and the discussion that followed, as well as the numerous cases examined by the Committee on Freedom of Association. The Committee noted with concern that the problems at issue concerned numerous and serious acts of violence against trade unionists and legislative provisions or practices that were incompatible with the rights conferred by the Convention, including restrictions on the right to organize of certain categories of workers. The Committee also noted the inefficiency of criminal proceedings related to these violent acts, giving rise to a grave situation of impunity, and the excessive delays in legal proceedings. It also noted the allegations concerning the lack of independence of the judiciary.

The Committee noted that the Government representative had indicated that during the current Government, there had been no cases of trade union persecution, that progress had been made in the criminal investigations of some murders of trade union leaders, that the Multidisciplinary Committee responsible for coordinating the follow-up of the cases of trade union murders had been strengthened and that a special unit had been created for investigations of acts of violence against trade unionists in the Office of the Public Prosecutor. The Government representative also referred to the Tripartite Committee's activities, which was examining important reforms of the Labour Code. He also declared that there was no criminalization or stigmatization of trade union activity. This was also the case in the export processing zones where a bipartite commission had been established to find solutions to disputes in this sector. The Government representative had insisted on his Government's need for reinforced technical and financial cooperation. He stressed the importance of the entire trade union movement participating in the social dialogue in the country.

The Committee noted the high-level mission that had visited the country in February 2009 and that the mission had emphasized that, while additional resources had been placed in the investigatory mechanisms for combating impunity, further measures and resources were clearly necessary to that effect. The Committee observed with deep concern in that regard that the situation in relation to violence and impunity appeared to be worsening and recalled with urgency the importance of ensuring that workers were able to carry out their trade union activities in a climate free from violence, threats and fear. The Committee highlighted the need to make meaningful progress in the sentencing in relation to crimes of violence against trade unionists and in ensuring that, not only the direct authors of the crime, but also the instigators were punished and observed in this regard the need for continued strengthening of and specific training for those responsible for investigating violence against trade unionists, as well as an improved collaboration of the various bodies mandated in this regard. The Committee hoped that concerted efforts in this regard would finally permit meaningful progress in bringing an end to impunity.

Noting further with concern the important allegations of an anti-union climate in the country and the stigmatization of trade unions, the Committee recalled the intrinsic link between freedom of association and democracy.

In this regard, the Committee noted that, beyond the question of impunity, the conclusions of the high-level mission focused on the need for concerted action in relation to the effectiveness of the judicial system, the effective respect for freedom of association by all parties and the effective functioning of the national tripartite commission. The slowness and lack of independence of the judiciary, in particular, gave rise to significant challenges to the development of the trade union movement.

The Committee observed that despite the seriousness of the problems there had been no significant progress in the application of the Convention, in legislation or practice. It also expressed its concern regarding the situation in the export processing zones. The Committee urged the Government to redouble its efforts with respect to all the abovementioned matters and to adopt a complete, concrete and innovative strategy for the full implementation of the Convention, including through the necessary legal reforms, the strengthening of the programme for the protection of trade unionists and witnesses and of the measures to combat impunity, and the provision of the financial and human resources necessary for the labour inspectorate and the investigative bodies, such as the Public Prosecutor's Office. The Committee expected that, with the assistance and necessary technical cooperation of the Office, the Government and the social partners would be in a position to agree upon a road map with clearly determined time frames for the necessary action in respect of all the above points. The implementation of this road map should be reviewed periodically by the ILO.

The Committee requested the Government to provide a detailed report to the Committee of Experts this year providing information on the tangible progress made in legislative reforms, the fight against impunity and the creation of a conducive environment for trade unionism and it expressed the firm hope that it would be in a position next year to note substantial improvements in the application of the Convention.

Individual Case (CAS) - Discussion: 2008, Publication: 97th ILC session (2008)

A Government representative stated that the objective of achieving full respect for freedom of association, which was the reason why his country had ratified the Convention in 1952, was still relevant as a fundamental pillar for the development and reinforcement of collective bargaining, and he reaffirmed his commitment to this objective. Labour issues were at the centre of the Government's policies and touched upon practical issues, including the need to modernize labour legislation so as to harmonize it with the provisions of the ILO Conventions ratified by his country, the establishment of more responsive procedures and the strengthening of labour and business, especially in the current context of the country's participation in a globalized world.

The State had the obligation to prepare a fertile ground so that the Guatemalan people could accede to decent employment, have sufficient resources to satisfy basic needs and raise their standard of living, in an environment of respect for individual rights and access to the protection of an efficient social security system. The Political Constitution of the Republic envisaged a series of individual rights and guarantees for workers and ensured that these could only be improved upon and never reduced. These guarantees could be improved upon through collective bargaining. Moreover, international human rights Conventions and treaties, including those on labour law and freedom of association, were recognized as having supremacy.

He indicated that in April this year a high-level mission had taken place as recommended in the conclusions of this Committee in 2007 with encouraging results, resulting in the signature of an agreement in the framework of the Tripartite National Committee. Moreover, he informed the Committee of the existence within the Public Prosecutor's Office, of a Special Office of the Public Prosecutor for Offences against Journalists and Trade Unionists, which had been entrusted with the follow-up of the pending cases. It should be emphasized that there was no institutionalized policy of violence against trade unionists or any other social group, and that the Government had accepted its duty to facilitate the investigation of these cases with all available means.

Trade union rights, in the same way as the rights of every citizen, could only be exercised in a climate of peace and tranquillity, without an individual's actions being subject to any kind of violence, especially for the exercise of a legitimate right such as the right to associate, whether in respect of labour matters or in any other area. The report of the Committee of Experts referred to the specific case of the Secretary-General of the Union of Workers of the Quetzal Port Enterprise; he should recall that until now, the investigations carried out had not produced any proof of a murder as a result of trade union activities. The investigation was continuing in order to determine the true reason for the murder and to punish those responsible.

As for section 215(c) of the Labour Code, which established the need to have 50 per cent plus one of those working in the occupation to establish industry trade unions, as noted in the report of the Committee of Experts, it should be noted that draft texts already existed to amend the Labour Code along the lines indicated by the Committee of Experts.

With regard to the delay in or the refusal to register trade unions, the legislation did not allow such a refusal vis-à-vis any trade union unless it failed to comply with a requirement provided for in the law. In cases where a formal requirement had not been met, the omission was rectified by giving the opportunity to the applicants to comply with the requirements. Moreover, work was being undertaken to reform and modernize the labour legislation, while maintaining the concepts and principles which should reinforce relations between employers and workers.

In order to speed up judicial procedures, nine courts of first instance had been created in addition to those that already existed and efforts were being made for the establishment of courts in areas in which the labour force was concentrated, such as the Department of Izabal, Alta Verapaz, Santa Rosa, Suchitepéquez and El Petén. In these departments four tribunals of second instance had also been created in order to facilitate access to justice. Moreover, work was under way on a legislative initiative to amend the Act on the protection of constitutional rights (amparo); considerable progress had been made with the draft text which was awaiting the opinion of the Constitutional Court.

With regard to the Civil Service Bill, he said that it had been withdrawn from discussion at the plenary session of Congress taking into consideration the objections formulated by the regular supervisory bodies. In fact, the elaboration of a new draft was under consideration in order to bring it into line with the provisions of the Convention, with the assistance and technical and financial support of the ILO.

With regard to the export processing sector, the staff of the General Inspectorate of Labour had been increased to focus exclusively on this sector. The Government had requested the ILO Subregional Office, in the framework of the technical and financial assistance requested, to address the subject of freedom of association and collective bargaining in the export processing sector, by carrying out monthly tripartite seminars on freedom of association and collective bargaining in the export processing industry. He took advantage of the present opportunity to reiterate this request.

He stated that the Tripartite National Committee had already been established and dialogue had commenced in order to obtain a solution to the problems raised by the workers and employers and agreements on legal reform. To this effect, a specific subcommittee had been created and met every 15 days in the Ministry of Labour and Social Insurance.

The agreement signed during one of the meetings of the Tripartite National Committee between employers, workers and the Government as a result of the visit of the high-level mission in April this year, demonstrated the good faith and political will of the Government to look for solutions through the reinforcement of social dialogue and through agreements reached by consensus.

With regard to labour statistics, he said that the Government was working on the restructuring and modernization of the Ministry of Labour and Social Insurance, including the strengthening of such areas as the directorate of labour statistics. The following tasks had been given priority: surveys and statistics on all aspects of labour matters, an ongoing programme of studies on labour markets and the corresponding technical areas (economics, statistics, sociology, etc.) aimed at ensuring training and research on labour issues.

Finally, he referred to the signature of a collective agreement on labour conditions with one of the most important organizations of the country, the National Teachers' Assembly, which brought together approximately 14 unions from the education sector; the signature of a collective agreement on conditions of work with the Trade Union of Employees of the Ministry of Labour and Social Insurance; the authorization of various trade unions which resolved the formalities for their establishment, including the Union of Investigators of the Office of the Public Prosecutor, the employees of the export processing sector and the trade unions of agricultural employees. As a result of the above, he requested once again the necessary technical and financial assistance to continue improving the system for the application of ILO Conventions. The text of the Agreement was as follows:

Agreement in the framework of the Tripartite National Committee

In the City of Guatemala, the Government of Guatemala, represented by the Ministry of Labour and Social Insurance, the representatives of the trade union movement, the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), gathered together in the context of the Tripartite Commission, for the purpose of the ILO high-level mission (21-24 April 2008), to agree to examine the following subjects with a view to drawing up draft reforms or guidance for the purpose of the improved application of ILO Conventions Nos 87 and 98:

(1) Evaluation of institutional action, including the most recent, and particularly the special protection measures to prevent acts of violence against trade unionists under threat. Also, the evaluation of the measures that are being taken (increases in budget allocations and in the number of investigators) to guarantee effective investigation with sufficient resources to permit the elucidation of the crimes against trade unionists and the identification of those responsible.

(2) Examination of the dysfunctions of the current system of labour relations (excessive delays and procedural abuses, lack of effective enforcement of the law and of sentences, etc.) and particularly of the machinery for the protection of the right to collective bargaining and the rights of workers' and employers' organiza- tions and their members as laid down in Conventions Nos 87 and 98 in the light of technical considerations and the comments of a substantive and procedural nature of the ILO Committee of Experts on the Applica- tion of Conventions and Recommendations.

Bearing in mind that the problems indicated have persisted for many years, the parties undertake to examine these matters rapidly through monthly meetings for the purpose of preparing progress reports.

Considering that the supervisory bodies have placed emphasis on the problems indicated, the parties undertake to work intensively in a consensual manner with a view to drafting reforms or guidance and to inform the Committee of Experts before its next session in November 2008, on the understanding that the progress reports are to be submitted every two months to the International Labour Office.

The high-level mission undertakes to provide appropriate technical assistance in relation to these matters.

The Employer members expressed their appreciation for the continued positive attitude of the Government. They recalled that the application by Guatemala of Conventions Nos 87 or 98 had been discussed by the Committee every year since 1991, and very frequently throughout the 1980s. A review of the Committee of Experts' comments over this period showed that there had been a steady and ongoing implementation of both Conventions. The list of issues raised by the Committee of Experts was decreasing, and this was to be commended.

They noted that there had been a new Government since 14 January and that, as the Government representative had indicated, a Tripartite Agreement had been signed in April 2008 as a result of the ILO's high-level mission. This agreement committed the Government and the social partners to meet on a monthly basis to work together on draft legislation and guidelines. In this respect they reiterated the need for the commission established by the agreement to take into full consideration the comments made by the Committee of Experts.

The recent rise in the number of deaths and murders of trade unionists was deeply regrettable; noting the Government's indication that it would expand the office of the Public Prosecutor to address this problem, they expressed the hope that the Government would soon do so and undertake other measures to protect trade unionists. It was a central principle of Convention No. 87 that freedom of association could only be realized in an atmosphere free from violence and intimidation.

They concurred with the Committee of Experts that the requirement of half plus one of those working in the occupation to establish a trade union was too high. The requirement to be of Guatemalan origin to run for trade union office was also not in conformity with the Convention. As concerned strikes, they emphasized that due account must be taken of the different circumstances, conditions and level of development pertaining to each country. No single rule applied in this respect, as what could be considered an essential service in one country might not be essential in another.

The Worker members emphasized that Guatemala was once more on the list of individual cases because of its regular violations of the fundamental rights of workers, notably to freedom of association and the right to negotiate - violations that went as far as murders of trade union leaders and militants. Guatemala was one of the most dangerous countries for trade unionists, with a serious situation of impunity and corruption. The fact that a newly elected Government had taken office had produced a glimmer of hope. At the end of January 2008, during the International Conference on Impunity, the new President of the Republic had declared his will to do everything possible to eradicate violence towards trade unionists and to put an end to endemic impunity. Unfortunately, since then, the situation had deteriorated further.

The previous year, the Worker members had condemned the acts of violence committed on trade unionists. Yet, the list of victims continued to grow and practically nothing had been done to identify and punish the culprits. The complaints submitted by unions had either been declared irreceivable or without merit and the persons who had submitted them suffered acts of intimidation and threats. In this regard, it should be noted that the Government representative had expressed a commitment to strengthening the prosecution services. A series of attacks - notably at the headquarters of the General Central of Workers of Guatemala (CGTG) and at the home of the leader of the Confederation of Trade Unions of Guatemala (CUSG) - of assassinations, including that of Carlos Enrique Cruz Hernandez, member of the trade union of workers of banana plantations, and of arrests, proved that the situation had worsened and that the intolerable climate of violence and impunity was continuing. In this context, they said that it would be useful to know the initial conclusions of the ILO mission in Guatemala in April 2008.

Concerning the non-conformity of the legislation with the Convention, they emphasized that this restrictive legislation prevented de facto the organization of legal strikes. The Government had not replied to the request of the Committee of Experts to prepare a thorough reform of the legislation in that regard. Restrictions on freedom of association and collective bargaining remained common practice in the 250 export processing sector maquilas, where there were not even seven trade unions, as indicated by the Government representative, but only three. The weakness of the labour inspectorate did not improve the situation.

With reference to the legislation on the civil service, which was contrary to the Convention, they said that nothing has been done to amend it and, in practice, trade unionists had been laid off, notably at the National Credit Bank and the Office of the Public Prosecutor. The Committee of Experts had noted that dialogue was not effective in the National Tripartite Committee and that the Government did not show a will to make it work, using as a pretext to gain time the lack of consensus between workers and employers. No decisions were therefore being taken to amend the legislation.

In conclusion, the new Government and the International Conference on Impunity had raised hopes, but, unless the reports of the mission conducted by the ILO in April 2008 indicated otherwise, the information currently available showed a continued failure to comply with international labour standards. Promises and statements did not count when faced with the reality of systematic violations of trade union rights, in a climate of daily increasing violence.

The Worker member of Guatemala said that an examination of the observations of the Committee of Experts demonstrated that since 1999, the different governments of Guatemala had systematically demonstrated their indifference to tripartite efforts to overcome the serious problem of failure to comply with the Convention. Neither the continued discussion of the case by the Conference Committee nor the ILO's direct contact technical missions had led to measures by employers and governments to slow down the incessant killings of trade union leaders. It was clear that the situation in his country had worsened, as the following persons had been murdered: Marcotulio Ramirez Portela and Carlos Enrique Cruz Hernandez in the Izabal district banana plantations; Sergio Miguel Garcia and Miguel Angel Ramirez Enriquez on the Olga Maria plantation, as well as many other unionists murdered in previous years. There was a climate of violence, intimidation and threats. There had been illegal dismissals as a result of attempts to establish unions, for example: the Petén workers' distribution union, the Workers' Union of the Southwest and the union of the Instalcobra enterprise, which had been subcontracted by the DEOCSA company, part of the Spanish transnational enterprise Unión FENOSA. In the latter case, 32 unionists had been dismissed. Salaries had been illegally withheld for six months in the case of the workers at the Crédito Hipotecario Nacional. There were also 18 notifications of dismissal. All this had led to a climate of terror and the impossibility of having decent work.

The shameful institutional inability of the Office of the Public Prosecutor and the law courts to bring the guilty to justice had led to a feeling of impunity. While it was true that a special office had been established in the Office of the Public Prosecutor against journalists and trade union- ists to investigate crimes, there had been no real strengthening of its powers, which on the contrary had been weakened, as it had reverted to a mere local Office of the Public Prosecutor, with no national structure or capacity.

The main reason for failure to comply with labour provisions lay in the absence of effective enforcement. The legislation needed reforming in order to eliminate obstacles which prevented the exercise of freedom of association, and the general labour inspectorate, the Office of the Public Prosecutor and labour tribunals needed to take the necessary action. Effective and efficient internal controls were also needed for civil servants, including the application of the rules governing judges.

He added that the establishment of trade unions at the industrial level was limited because a figure of 50 per cent plus one of the workers concerned was required, which was a trap, as it was difficult, if not impossible, to know what 100 per cent of the workforce was in any specific activity. Nor did the employers or the Government know such figures.

Regarding strikes, section 241 of the Labour Code required that the strike be announced by a majority of workers and not by a majority of those voting. Given this impossibility, some unions had attempted to organize de facto strike action, only for the police to be given immediate orders to break up the strikes or for the Government to invent a pretext to end the strike, as had happened recently with the transport workers where, instead of giving precedence to dialogue, the Government had declared preventive measures to avoid an emergency, with the result that 49 workers had been imprisoned and one murdered. Sympathy strikes were also banned.

With regard to the export processing sector of maquilas, he stated that it was almost impossible for unions to be established as there was a climate of anti-union discrimination and violence, with all kinds of subtle methods and actions used to prevent unions from being set up. In view of the above, he called for the case to be included in a special paragraph.

The Government member of Peru, speaking on behalf of the Latin American and Caribbean Group (GRULAC), noted that as a result of the conclusions of the Conference Committee adopted by the 96th Session of the Conference in 2007, Guatemala had accepted a high-level mission, which had taken place from 21 to 24 April 2008, and that the country continued to show signs of openness and cooperation with the ILO supervisory system. He added that, as a result of the mission, a Tripartite Agreement had been signed which gave priority to certain subjects, with a view to the preparation of draft reforms and guidelines to improve the application of Conventions Nos 87 and 98.

He asked the Committee and the Office to respond positively to the request for technical assistance by the Government of Guatemala in order to support its efforts to achieve full respect for trade union rights in the country.

The Worker member of Colombia stated that because of anti-union practices there was virtually no freedom of association in Guatemala. According to information from the organizations concerned, the percentage of unionized workers was less than 1 per cent. The Committee of Experts had been insisting for some 20 years on the urgent need to protect the rights of the working classes, including the right to life, as murders of unionists in Guatemala was a constant menace. He expressed concern and asked for a full investigation of the trend towards the feminization of killings; according to information available, in the last eight years, more than 3,000 women had been murdered.

He expressed concern that despite the repeated promises to comply with and give effect to the recommendations of the Committee of Experts, reality showed that restrictions on the exercise of freedom of association persisted, both in the public and the private sector, and prevented any possibility of collective bargaining. He reminded the Government that the very existence of a tripartite body was not enough to ensure the existence of dialogue; all sides had first to show their determination to comply with international labour standards. He urged the Government to adopt measures to protect the lives of unionists, to intensify the fight against impunity and to bring an end to anti-union activities so as to prevent the continued extension of bad practices across the region. Finally, he asked that the case be included in a special paragraph.

The Worker member of the United States reported that two months ago he had witnessed a candid speech by recently elected Guatemalan President Alvaro Colom at George Washington University in Washington, DC. The President had emphasized the critical need for labour rights and social justice in Guatemala, and had lamented the destruction of Guatemalan unionism over several violent decades. Although the President's welcome words seemed sincere, he warned that good intentions alone would fail to reverse the chronic violations of freedom of association and collective bargaining rights in Guatemala, which the Committee had reviewed for most of the last ten years, and which had only worsened.

The American Federation of Labour and Congress of Industrial Organizations (AFL-CIO) had been assured by the Bush Administration and by advocates of the US-Dominican Republic-Central American Free Trade Agreement (DR-CAFTA), implemented two years ago, that the trade pact would improve the labour rights situation in the region, including Guatemala, by providing an incentive for good behaviour by incorporating a labour chapter. But implementation of the trade pact had not improved Guatemala's compliance with its existing laws on freedom of association and collective bargaining, as was fully documented in the joint complaint submitted by the Guatemalan labour movement and the AFL-CIO on 23 April 2008, pursuant to Chapters 16 and 20 of DR-CAFTA.

dispute settlement mechanisms of the trade pact was whether the parties were complying with their own labour laws, no matter how substandard they might be in terms of Conventions Nos 87 and 98.

As was evident from the 2008 report of the Committee of Experts and from the session under way, Guatemalan law on its face continued to be in flagrant violation of the Convention. Section 379 of the Labour Code continued to impose liability on individual workers for damages resulting from a strike, creating a chillingly fatal effect on the exercise of Convention No. 87 rights. The law still empowered national police to function as strike-breakers.

Anti-trade union violence and impunity had only worsened since the implementation of the DR-CAFTA. Cases since July 2006 that he could mention were: an officer of the Union of Banana Workers of Izabal (SITRABI ) shot at three times on 26 November 2006 after visiting union members at the Chickasaw plantation; Pedro Zamora, General-Secretary of the Quetzal Port Workers brutally murdered in front of his children on 15 January 2007, with evidence of some involvement by the former governmental administration, as well as continuing death threats against other leaders of the same union; Walter Anibal Ixaquic Mendoza and Norma Sente de Ixaquic, leaders of the Frente Nacional de Vendedores de Guatemala, shot and killed in downtown Guatemala City on 6 February 2007, as they were attempting to resolve a labour conflict related to the safety of street vendors; SITRABI Cultural Secretary Mario Tulio Ramirez assassinated in September 2007; on 22 January 2008, Rosalio René Gonzalez Villatero, General-Secretary of the San Benito Independent Farmworkers, murdered immediately after filing a complaint with the local prosecutor regarding a labour dispute: on 2 February 2008, Sandra Isabel Ramirez, daughter of the General-Secretary of the Union of Banana Workers of the South (SINTRABANSUR), whose members produce for Chiquita, abducted and raped by four masked men who interrogated her about her father's trade union work; on 29 February 2008, the son and nephew of José Alberto Vicente Chavez, a leader of the Union of Workers in the Coffee and Coca Cola Drinks Industry (SITINCA) at Retalheu brutally murdered at a bus stop while awaiting the return of their father and uncle from the city where ironically he had filed a complaint about his own personal safety; on 1 March 2008, shots fired into the home of the General-Secretary of CUSG, an affiliate of the International Trade Union Confederation (ITUC); and on 2 March, Miguel Angel Ramirez Enriquez, General-Secretary of SINTRABANSUR assassinated.

However, the report of the Committee of Experts mentioned a paltry record of only two convictions for anti-union violence and a grand total of 17 unionists in a pro- tection programme. Impunity for the intellectual and material authors of anti-union violence in Guatemala had reached crisis proportions. He called for a special paragraph in the case as false promises of improved labour rights through trade agreements and other ruses could no longer be tolerated.

The Worker member of Norway recalled that the Committee had been discussing grave violations of Conventions Nos 87 and 98 in Guatemala for many years, but that the situation had only worsened. In Guatemala the judicial system was almost non-functional. In addition, only between 1 and 2 per cent of workers were organized and few complaints were sent by workers to the Ministry. This was due to fear of harassment, loss of job, threats and even murder.

She described the case of the SINTRABANSUR union organization in the Olga Maria banana plantation. The union had been formed in July 2007 to negotiate a collective agreement and the legal minimum wage. After the union leaders had given the local office of the Ministry of Labour and Social Insurance a list of members' names, as required by law, the names had been immediately leaked to the employer, who had used private security agents to threaten and harass workers, both at work and in their homes. In November 2007, the employer had threatened to close the plantation if the workers continued to participate in the union. If they renounced they would receive €400. Protests by union leaders to local authorities and labour inspectors had achieved nothing. The General-Secretary of the union had refused to concede, had been kidnapped and tortured, before agreeing to resign. On 2 February 2008, his daughter had been interrogated by four men, raped and thrown down a river bank. One of the union founders, Miguel Angel Ramirez, had been assassinated in his own home in the same month. Danilo Mendez had later been threatened by armed and masked men who had surrounded his home.

Transport workers had organized peaceful protests in May 2008 against a decree that would force them to drive at night when the threat of attacks and killings was highest. Their request for dialogue with the President had been refused unless they ceased their protests. A new decree had been issued cancelling the drivers' contracts, limiting the right to strike and forbidding demonstrations for which approval had not been given. The drivers had been dispersed by special police units.

These were not isolated cases. Four shop stewards had been killed during 2008 and the perpetrators would certainly enjoy impunity, as courts and police lacked capacity and the will to bring the guilty to justice.

She asked the Government for an assurance that it would cooperate with the ILO to comply with Conventions that it had ratified.

The Government representative of Guatemala recognized the fact that there were problems in the country and stated that the new Government was aware of them. Referring to the issue of transport, he said that the Government considered it as an essential service subject to a special regime, and denied that force had been used in the case of the demonstration that had blocked all access to the country for three days. The solution had been achieved through dialogue. With regard to murder of trade unionists, he noted that in slightly less than four months since the Government had taken office, none had occurred. Regarding the export processing sector of maquilas, he emphasized that the Government's job was not to set up trade unions but to register them and that, contrary to what had been said by other speakers, and as the high-level mission had seen for itself, seven unions had been registered.

He called for reflection and stated that violence in the country was not institutionalized, that individual and collective rights were respected and that social dialogue was making progress. Technical and financial assistance was necessary in order to help the Government to modernize its labour legislation and bring it into conformity with international labour conventions and recommendations, in order to improve the living conditions of all Guatemalans.

The Employer members stated that a different strategy was needed. The Government had started slowly years ago to meet its obligations under Conventions Nos 87 and 98 in law and practice, and the recent Tripartite Agreement, drawn up under the auspices of the ILO high-level mission, had set an active timeline for reforms and guidelines to bring Guatemala's laws in line with Convention No. 87. These reforms would have to be reviewed and commented on by the Committee of Experts.

But they stated that the root cause was the violence in the country. Without a dedicated focus on protecting society and trade unions, there was no Government programme to address the violence, especially with respect to protecting trade unions.

Annual discussion in the Committee was not the solution. What was needed was ongoing engagement with the ILO with a focus on violence and working with the Government and other governments to set up a bona fide trade union protection programme with an adequate law enforcement, investigation and labour inspection system. Moreover, through the Tripartite Committee and with ongoing ILO engagement, the work on reform and guidelines could be completed. Enhanced efforts were required by the ILO, the Government and Guatemala's neighbours to address comprehensively the problem of violence and lack of compliance with the requirements of Conventions Nos 87 and 98.

The Worker members indicated that, following the discussion, they wished to formulate strict conclusions. The Government had to take all the necessary measures to ensure that the commitment made by the President of the Republic was respected and to put an end to the climate of violence and impunity. To halt the assassinations and acts of intimidation towards the trade union movement, the Government had to ensure that prosecutions were undertaken and that the perpetrators of these crimes, as well as their instigators, were convicted. It seemed necessary to opt for a different strategy and to propose the adoption of a special programme against violence, as well as the establishment of an ILO Office in Guatemala, to ensure the constant monitoring of the situation and the application of the Convention. In so far as, as demonstrated by the Committee of Experts, the legislative framework was in flagrant violation of the Convention, the Government had to prepare, with the social partners, a new legislative framework that guaranteed respect for fundamental labour standards in the public and private sectors, as well as the trade union rights of workers in the export processing sector. Considering the lack of progress observed, the evident lack of will from the Government to make sure that things moved forward, the worsening of the situation and the numerous acts of violence, the Worker members proposed the inclusion of this case in a special paragraph in the Committee's report.

The Government representative of Guatemala welcomed the conclusions of the Committee and accepted the invitation for a tripartite mission to visit the country. He hoped that the tripartite mission would make firm proposals for solutions to the existing problems. He also hoped that the Government would be able to report on the positive progress made with ILO technical assistance next year.

Conclusions

The Committee noted the Government representative's statements as well as the discussion which followed and the cases examined by the Committee on Freedom of Association. It expressed its concern at the pending problems persisting for many years concerning serious acts of violence against trade unionists, as well as to the law and practice restricting trade union rights. The Committee further expressed its deep concern at the acts of violence and intimidation against trade unionists referred to in the comments of the International Trade Union Confederation (ITUC).

The Committee noted that the high-level mission it had invited the Government to accept last year when discussing Convention No. 98 had recently visited the country. It also noted with interest that during this mission, the Government and the social partners signed a tripartite agreement including a plan of action to solve pending problems regarding Conventions Nos 87 and 98 and involving ILO technical assistance.

The Committee noted the goodwill expressed by the Government and the information provided on various bills aimed at better implementing the Convention, the creation of new labour judges and of a special section of the labour inspectorate for the export processing zones. The Government had further pointed out that the Office of the Public Prosecutor had increased the number of investigators of crimes against trade unionists with the corresponding budget. The draft law on the civil service which had been criticized by the Committee of Experts had been withdrawn and a new draft had been elaborated in full conformity with the Convention.

The Committee expected that the Committee of Experts would examine the report of the high-level mission and would thus provide this Committee with the most relevant and up to date information on the application of the Convention. The Committee also hoped that, in the light of the mission's conclusions, the Government, in consultation with the employers' and workers' organizations and with the support of ILO technical assistance, would promptly take the necessary measures to make the necessary changes to the law and practice in order to resolve the pending matters concerning violence and of the labour legislation including the situation of enterprises in the export processing zones.

The Committee deeply deplored the recent murders and death threats of trade unionists. It once again reminded the Government of the urgent need to adopt additional measures to bring an end to the violence against trade unionists and guarantee the security of all those who were victims of threats. The Committee emphasized the need to finish with the prevailing situation of impunity and to ensure that the material and intellectual instigators of these crimes were punished. The Committee recalled that trade union rights could only be exercised in a climate that was free from violence.

The Committee considered that the ongoing problems in this case required an ongoing engagement with the ILO with a focus on violence in the country, including the possibility of an ILO office. The Government should also work with neighbouring governments in setting up a bona fide trade union protection programme with adequate law enforcement, investigation and labour inspection system.

The Committee took note of the Government's request for technical support from the ILO and expressed the hope that, with this assistance the work on reforms and guidelines would be completed so that it would be in a position in the very near future to note significant progress in law and practice.

The Committee requested the Government to take prompt action and to submit a detailed report for examination at the forthcoming session of the Committee of Experts.

The Committee invited the Government to accept a mission made up of the Employer and Worker spokespersons to assist the Government in finding durable solutions to all of the above matters.

The Government representative of Guatemala welcomed the conclusions of the Committee and accepted the invitation for a tripartite mission to visit the country. He hoped that the tripartite mission would make firm proposals for solutions to the existing problems. He also hoped that the Government would be able to report on the positive progress made with ILO technical assistance next year.

Individual Case (CAS) - Discussion: 2005, Publication: 93rd ILC session (2005)

A Government representative (Minister of Labour and Social Security) declared his firm conviction that the mechanisms of control on the application of international standards that the ILO had put in place created an important mechanism for cooperation for the country. The observations of the Committee of Experts were objective, sincere and useful in order to strengthen the institutional regime, the governance and the democracy of Guatemala. The correct utilization of the observations of the Committee of Experts permitted the Government and the social partners to position themselves so that they do not lose sight of the true sense of international labour legislation.

The speaker recalled that Guatemala has faced significant obstacles in its history of confrontation and ideological intolerance. The advances that have been presented in the observations of the Committee of Experts seem small, but in Guatemala constituted true progress if one takes into account the profound problems that have to be confronted by means of effective social dialogue. In order to continue advancing, there was a need to count on the support of the Committee, the Conference, the Employers, and principally the trade unions.

In relation to the observations of the Committee of Experts, the speaker enthusiastically expressed the recognition of the sincere political will of the Government to collaborate with the ILO during the direct contacts mission conducted in 2004 and the positive assessment of the commitments made by the Government. With this sentiment the Government representative stated that his Government has promoted the integration and the function of the Tripartite Commission of International Affairs, which has met and worked in uninterrupted form from 2004 to the present and has obtained advances in the consultation and agreement for the creation of a mechanism of "immediate intervention" in order to examine the complaints within the competence of the Committee on Freedom of Association and the observations on the application of international conventions, that will begin to function soon. The complaints that are not sent directly to the ILO, except in the instance of problems of national interpretation, can be resolved in the country. Likewise, the Government analysed with the employers and trade unions the necessary legal reforms to overcome the problems that they had with the reforms of 2003, in particular the existence in the national penal legislation of provisions against freedom of association principles. The Government looked to address the aspects indicated by the Committee of Experts in relation to ILO Conventions Nos. 87 and 98, the eligibility requirements for becoming a trade union leader, the legal criteria to establish the necessary votes to call a strike and the legal definition of essential services in relation to the exercise of the right to strike. In this respect, the Tripartite Commission has arrived at a consensus to undertake the legal reforms necessary that permit adaptation of the Labour Code to the relevant international standards on discrimination in employment and occupation. In this sense, the Government has presented a proposal to Congress for its approval. Many of the problems identified by the Committee of Experts have been resolved through laws that have amended problematic provisions, as in the case of Government Decree 700/2003.

In relation to the commitments made before the direct contacts mission, the Government representative stated that his Government has met all of those and noted concrete advances in the approval of initiatives for legal reform that the Tripartite Commission had accepted and requested the assistance of the Office, in order to organize the first national seminar on labour rights and freedom of association.

With respect to the competence of labour inspection regarding trade union rights of civil servants, the labour inspection is competent to hear complaints of violations of trade union rights of public employees and act as a mediator, as has been affirmed in various rulings of the Tribunal of Conflict of Jurisdiction of the Supreme Court of Guatemala. The mechanism to deal with this was actually being used to obtain an alternative solution to collective conflicts between public sector workers and their employers.

With regard to the creation of trade unions in industry, the speaker noted that it was only a problem of interpretation of the applicable legislation, and that section 215 of the Labour Code, that did not violate any principle of freedom of association by providing that in order to form and industry trade union, at the branch level, workers can establish unions at the enterprise level so long as they were all of a similar nature. If a union movement did not have a sufficient number of members to establish an industry trade union they could then establish an enterprise union where they could group with a variety of enterprises of the same nature, and where they needed only 20 workers. If today no such union has been established, this was because the trade union movement was not as yet sufficiently developed.

With respect to the imbalance between trade unions and solidarist associations, the speaker noted the operational deficiencies in tabulating the real number of active trade unions and their affiliates. The Government has worked to overcome these deficiencies in a project to systemize the labour register, but it would take time to complete this project due to the lack of funds. The speaker requested the support of the Office in finalizing this project. The indicator of the number of solidarist associations and their affiliates was a result of a unilateral declaration of these associations although there were no objective elements to confirms that there was in practice violation of trade union rights.

The speaker recognized the existence of certain institutional weaknesses in Guatemala for this type of crime. The acts of violence have diminished considerably and the Government supported the interventions of the authorities to complete their investigations quickly and effectively. The speaker noted that the Government was considering a protection mechanism recommended by the direct contacts mission in 2004. In closing, the speaker observed that the Committee of Experts had recognized the efforts of the Government by listing the country among those who had made progress. He requested that the case of Guatemala should not be mentioned in a special paragraph since this would not contribute to the strengthening of national institutions.

The Worker members indicated that, although the information presented by the Government of Guatemala tended to show progress, the reality refuted these assertions. The changes mentioned by the Committee of Experts in its report should be greeted with caution, taking into account the new facts which reinforced the concerns raised by the many elements that demonstrated the persistence of the violation of Convention No. 87 in Guatemala. While, according to the report of the Committee of Experts, the labour inspectorate would have the power to impose sanctions in case of violation of trade union rights, in fact the Constitutional Court had restricted this power in August 2004 and the labour inspectorate was often not on the side of the workers during social conflicts. On this point, further information on the staff of the labour inspectorate, the sanctions imposed in case of freedom of association violations and their effective application would be necessary. The Worker members underlined that Act No. 35 of 1996, known as the anti-strike act, still prohibited workers in public services from striking under penalty of imprisonment. This was sufficient to demonstrate that the restrictions of the Guatemalan workers' rights had not yet been lifted.

The Worker members protested against the assertion of the Government that "civil society" organizations tended to show little respect for the institutional means for addressing labour disputes, an assertion which tended, in their view, to discredit the social partners when these claimed the application of the rights and procedures to which they themselves were submitted.

The Worker members underlined that the rule imposing a requirement to be of Guatemalan nationality and working in the enterprise or sector concerned in order to be elected as trade union leader, remained in force although it had been found contrary to Convention No. 87, just like the rule imposing a requirement of 50 per cent plus one of the workers in the sector in order to be able to establish an industry trade union, a fact which created interminable delays or even refusals of trade unions' registration. This situation was in contrast to the assertions of the Government which claimed that the situation had gotten back to normal and attributed the length of the delays to the workers, on the grounds that they "had failed to present documents", an assertion which demonstrated by the way that, in reality, the situation had not yet returned to normal. Moreover, with regard to the "maquila" sector, the Government had mentioned the existence of two trade union organizations, which were really few in relation to the number of enterprises in this sector.

The Worker members also underlined that the confusion which endured on the subject of registration of trade union organizations in the taxation register, on which the Committee on Freedom of Association had already pronounced itself, appeared to allow the carrying out of controls over trade unions at any time. Moreover, the obstacles in the area of collective agreements remained numerous in practice: pressure on trade unionists, arbitrary dismissals of trade unionists, etc., as well as problems already raised with regard to the judicial power such as corruption, influence peddling, lack of vocational training, partiality, unexpected interventions by the Constitutional Court paralysing the action of the Labour Ministry. The Worker members noted a certain incoherence in this respect between the Guatemalan authorities, which had recognized the existence of a structural problem in the administration of justice as a whole, and the comments of the Committee of Experts which gave the impression that the changes made would guarantee an immediate handling of the problems relative to freedom of association. They also raised the incoherence between the announcement of the acquittal of Mr. Rigoberto Dueñas and the new charges brought against him by justice due to an appeal lodged in the Appeals Court, despite the conclusions of the Committee on Freedom of Association, the direct contacts mission and the messages of support by employers rallied in the Coordination Committee of agricultural, commercial, industrial and financial associations (CACIF).

The Worker members stated that the principle "in dubio, pro operario", according to which the most favourable legal rule should apply to workers in case of doubt, was largely refuted in practice as it was more common to decide a case on the basis of often biased legal precedents in contempt of the legislative prerogatives of Congress. They denounced the tendency to systematically take away labour conflicts from the competence of the Labour Ministry in order to bring them before the penal courts so as to prosecute and reprimand trade union leaders by reason of their social action.

The Worker members denounced the persistence of several facts: (i) the climate of violence and the acts which impeded the free exercise of freedom of association as illustrated by the numbers provided by the Government: 42 acts of violence in 2002-03 for example; (ii) the impunity which surrounded the acts of violence committed against trade unionists; and (iii) the persistence of threats and harassment against trade union leaders as demonstrated by the recent repression of the demonstration against the adoption of the free trade treaty, which had been adopted without consultations with the social partners despite its decisive impact on employment. They also denounced the acts of unauthorized entry into the trade union premises of several trade unions on 9, 10 and 11 May 2005, which had not given rise to any investigation, as well as the violence faced by workers in the informal economy, like Julio Rolando Raquel, secretary-general of a trade union, murdered at the end of 2004 without any legal proceedings having been instituted against the perpetrators of this act, an example which was unfortunately part of a very long list.

Finally, the Worker members differentiated themselves in relation to the assessment of the Committee of Experts which was too optimistic in their view, considering that: one could not talk of progress as long as trade unionists were being murdered, harassed or threatened; repression was being aggravated; so many cases (12) remained pending before the Committee on Freedom of Association; so many problems of application of Conventions Nos. 87 and 98 remained in practice.

The Employer members thanked the Government for providing complete and comprehensive information and noted that the ILO's 2004 direct contact mission was successful. They welcomed that the Government extended the mandate of the mission to Convention No.

87. The number of issues dealt with by the Committee of Experts had decreased but a number of problems remained. The Government worked towards solving them through the National Tripartite Committee. It was a central principle of the Convention that freedom of association could only be realized in an atmosphere free from violence and intimidation. The cases of violence against trade unionists, including cases of murder, were entirely unacceptable. While the Government established a Special Public Prosecutor, the results achieved were mixed and there was no information available to determine whether the measures taken were adequate. The Labour Code's requirement that trade union leaders be of Guatemalan origin was not in accordance with the Convention. Regarding the need to have "50 per cent plus one" of those working in an enterprise as a requirement to form an industry trade union, the Employer members stated that that percentage was too high. However, it was unclear on how the rule worked in practice in terms of the ability of smaller unions to engage collective bargaining. As to the right to strike, the position of the Employer members was well known. Due to the different situations from country to country, no single approach could exist in respect to the quorum required to call for a strike. Similarly, concerning essential services in which compulsory arbitration could be imposed, no "one-size- fits-all" approach was possible, as a given service may be essential in one country, but not in another, depending on the respective levels of development. In conclusion, the remaining problems went beyond questions of interpretation and the Government needed to do more to ensure the application of the Convention in law and practice. Further ILO assistance would facilitate the resolution of the outstanding issues.

The Worker member of Guatemala noted that while it was true that the situation in his country was examined in the past because of the persistent failure of the Government to apply ratified ILO Conventions, it was necessary to pursue, perseverance was required to ensure that pending issues were settled. Fifty years after ratifying Convention No. 87, Guatemala continued to prevent the forming of new trade unions in the country, when not seeking to eliminate those that already existed, as had been the case in the National Centre of books and didactic texts "José de Ipiña Ibarra" of the Ministry of Education (CENALTEX) company or in certain communes of Retahuleu, Tecun Human etc.

The speaker mentioned hurdles put in the way of trade unions in the country, even after they had been recognized and legalized by the Ministry of Labour: Leaders threatened, intimidated, persecuted or dismissed. Although, after the direct contact mission's visit the Government decided to free trade unionist Rigoberto Duenas, none of the charges against him actually being sustainable, a high court decided to take legal action against him, completely ignoring the information provided to the Committee of Experts. Secondly, the Committee of Experts received information according to which "the Labour Inspectorate was granted certain jurisdiction in the system of sanctions provided in case of non-respect of trade union freedoms", once it was ascertained that such sanctions had in fact been taken. The Constitutional Court had declare this jurisdiction to be unconstitutional, thereby creating a gap in the applicable law as a result of the disappearance of the jurisdictional body authorized to impose fines.

The speaker pointed out that the workers were the target of various acts of aggression - 122 were recorded in 2004, 68 to date in 2005, of which 12 in recent weeks: The judiciary had shown little diligence - 90 per cent of cases were filed and forgotten. Though in many previous cases, investigations had been opened, as had been the case following the death of trade unionist Julio Raquel, whose own wife has identified the culprits, the Public Prosecutor had not been diligent in any respect.

This demonstrated an absence of judicial capacity and an absence of political will by the Government to act The speaker mentioned that the Government had put obstacles to the opening of the Office of the UN High Commissioner for Human Rights, which demonstrated the lack of will on behalf of the Government to put in place the conditions required for the effective application fo human rights and freedom of association in the country.

The Labour Code clearly provided for the reintegration within 24 hours of a worker who had been dismissed for having formed a trade union, which showed that the problem at the centre of violations of these rights lay in the lack of will by the State to have them respected.-Thus workers had to wait light years for a court to pass verdict on their case, while others charged with other offences were provided with immunity from prosecution by the labour tribunals.

The clauses in section 390 and 430 of the Guatemalan Penal Code considered as penal all labour conflicts involving the workers. At the same time, when a worker pressed charges for flagrant abuses of his rights by an employer, the competent authorities remained silent. If, on the other hand, an employer pressed false charges against a worker, as was the case with the Maria de Lourdes agricultural enterprise, measures were immediately taken against the workers. Many men and women workers in this enterprise had been dismissed for having helped to form a trade union.

In the last two years, Government policy on workers' demonstrations consisted in accusing union leaders of terrorism. The President of the Republic had publicly threatened to imprison leaders at demonstrations. Several cases had confirmed this stance. A demonstration by the pilots' union had led to the imprisonment of 30 union leaders; a demonstration by the street traders' union had led to the imprisonment of 11 union leaders; another demonstration had led to the death of a child; another ended with the eviction of farmers in the Retahuleu district, with several deaths and many incarcerations. During demonstrations against the free trade agreement, thanks to the solidarity shown by the Prosecution for Human Rights, it had been possible to free all the leaders after the police had surrounded the offices where they were meeting and putting them in jail.

In conclusion, the speaker appealed to the solidarity of government and workers around the world, as well as to the ILO, to give Guatemalans the opportunity to live in dignity and obtain justice.

The Employer member of Guatemala expressed satisfaction with the progress noted by the report of the Committee of Experts and by the present Committee itself as being due to the merit of the national authorities and the employers. Progress on Conventions No. 98 and 129 had been clearly emphasized, and there had been positive comments on Convention No. 87. The direct contact mission of May 20045 noted a reduction in violence as well as a real will to submit various issues related to legal reform to tripartite discussion. The Congress of the Republic could then incorporate the national tripartite agreements into national legislation.

In Guatemala, the current climate was favourable to positive and concrete steps being taken to bring national legislation into conformity with international labour Conventions. The Constitutional Court had even recently recognized the competence of the judicial system to take sanctions against non-respect of freedom of association principles. This did not mean to say tha a legal void had existed prior to this regarding the imposition of sanctions, but that the courts could henceforth impose them.

In his opinion, some trade union organizations were taking part in tripartite dialogue while others preferred using the complaints procedure at national level. Events were currently leaning towards some legal issues - which, nevertheless, did not concern constitutional reform of the regulation of the right to strike, on which Convention No. 87 said nothing - being resolved by social dialogue. The ILO should show confidence in the process currently underway in Guatemala. In any case, the exercise of trade union rights had to conform to the law. No illegal practices could be allowed under the cover of freedom association.

The Government member of Norway, speaking also on behalf of the Governments of Denmark, Finland, Iceland and Sweden, noted the information supplied to the direct contact mission by the Special Public Prosecutor's Office, indicating a significant decrease in physical violence, while the number of cases involving threats and coercion had increased considerably. According to the Government, all cases relating to murder and other offences were still at the stage of investigation. This situation was of grave concern. Criminal proceedings were extremely slow and impunity was the norm in cases concerning trade unionists. The Nordic countries emphasized that trade union rights could only be exercised in an atmosphere which is free from violence and coercion. As requested by the Committee of Experts, the Government should be asked to provide information on any offences against trade unionists reported to the Special Prosecutor's Office. It was hoped that the Government would make every effort to ensure full respect for trade union members' human rights and that concrete progress on the above-mentioned point could be noted in the near future.

The Worker member of Panama denounced the violence and aggression shown by the Guatemalan authorities towards the trade union movement. He said that, in a letter addressed to the Vice-President of the Republic of Guatemala, he had condemned 122 acts of aggression committed in 2004 and 68 recorded to date in 2005 (of which 12 had taken place in recent weeks). In Guatemala, illegal armed groups and secret wings of the security services (CIACS) were acting in concert with thee security forces and were partly linked to organized crime and certain employers' organisations. The Prosecutor for Human Rights had condemned both the impunity that CIACS enjoyed and its collusion with the military intelligence services and organized crime. The UN Verification Mission to Guatemala had also declared the situation alarming. CIACS had been blamed in complaints lodged concerning human rights abuses, but no judicial proceedings had been initiated to allow investigations to be opened on these crimes and to find the guilty parties.

As regarded the situation concerning trade unionist Rigoberto Duenas, the speaker was confident that a final solution would soon be found to obtain his release. The Government of Guatemala seemed not to have the political will to address illegal acts against freedom of association and it had to be requested to provide information of complaints that had been lodged.

The Worker member of Costa Rica stated that a purely juridical analysis could not explain the Guatemalan problem. As regarded the trade union situation, the Government had shown itself to be unable to deal with complaints concerning illegal dismissals or violation of collective agreements. Joining other speakers in condemning the situation, he referred to the rigid attitude of the legal system which passed laws contrary to workers' rights and which benefited solidarist associations. The speaker also recalled that legal procedures related to the Mi Terra and El Tesoro estates, to the municipality of Livington and the El Anco estate had been ongoing for many years without producing concrete results. The workers members finally expressed his solidarity with unionist Rigoberto Duenas.

The Government member of El Salvador expressed her understanding of the situation in Guatemala and referred to the statement made by the Government representative. The efforts made by the Government of Guatemala to overcome the difficulties highlighted in the Committee of Experts' observations should be praised. The Office should support such efforts.

The Worker member of Norway recalled that the Committee had asked the Government to rectify breaches of the Convention for many years, and yet, workers in Guatemala continued to be victims of serious violations of labour rights, including the right to strike. It was disturbing to see that the direct contact mission found that threats and use of coercion against workers were increasing considerably. The Government's promises to remedy anti-union practices were thus put in question. The fact that only one per cent of workers in Guatemala were organized was due to the climate of fear that prevailed in the country. Unionists risked losing their jobs and even their life. When a demonstration took place following the Government's approval of the free trade agreement with the United States, which had been concluded without consulting civil society, the armed police and soldiers surrounded the office of a trade union which took part in the demonstration. In May 2005, unknown perpetrators broke into the offices of several trade union organizations. Only information about the organizations was stolen, while valuable equipment was left untouched. Such incidents increased the fear among trade unionists, preventing them from carrying out their democratic trade union rights. The Committee of Experts still listed severe restrictions of freedom of association contrary to the Convention, including section 241 of the Labour Code, regarding the number of workers needed at a workplace to be allowed to call a strike. The same applied to the imposition of compulsory arbitration in cases of public sector strikes of services which are not essential according to the ILO. Despite many promises by the Government to amend the labour laws and the pledges made to the direct contact mission, few measures had been taken. No legal strikes took place in 2004 and the harassment of workers continued, both in the private and public sector. Only if the Labour Code and section 390 of the Penal Code were changed, would the Government's commitment be credible. Finally, the ILO should consider more serious measures to change the situation.

The Government representative reaffirmed the will to continue the efforts recognized by the Committee of Experts and the direct contact mission. His Government intended to continue the fight against corruption. The situation regarding trade unionist Rigoberto Dueñas was being examined by the penal justice system and was not being treated as a case of trade union persecution. The delegation at the present session of the Conference was testimony to the openness to dialogue of his Government since it also included a magistrate of the Supreme Court of Justice and various members of the Congress of the Republic.

The Worker members stated that, considering the elements contained in the Committee of Experts' report together with the situation prevailing in the country, it was unthinkable to conclude that progress had been made in this case. In their view, all the elements mentioned in the discussion showed that the problems persisted and to some extent even worsened.

The Worker members therefore asked that the Committee, in its conclusions, ask the Government to provide a detailed report containing precise answers to all the questions raised by the Committee of Experts regarding the application of Convention No. 87. The Government should also be asked to take, as a matter of urgency, all necessary measures to guarantee the exercise of freedom of association, adopting legislation and ensuring practice in accordance with the Convention.

While recognizing that the technical assistance demanded by the Government could be useful, the Worker members asked that the Government would be requested to provide, in its next report: (1) an assessment of the measures taken by the national tripartite committee, the Special Prosecutor's Office and the labour inspectorate; (2) statistical information indicating the number of registered trade unions and solidarist associations, as well as (3) information on the follow-up measures taken to the related conclusions of the Committee of Freedom of Association.

The Employer members concluded that, while the situation was improving, it was not yet perfect. The Committee of Experts should undertake a full assessment of the situation and the information requested by the Workers members would be useful for that purpose.

The Committee took note of the oral information provided by the Government representative and the discussion that followed. The Committee noted with concern that the pending problems related to acts of violence against trade unionists, excessive delays in criminal proceedings and the impunity which often prevailed, as well as restrictions in law or in practice to the establishment, functioning and free exercise of the activities of trade unions, as well as penal sanctions for such activities. The Committee took note of the comments presented to the Committee of Experts by various trade union organizations. The Committee also took note of the results of a direct contacts mission carried out in May 2004 and the commitments undertaken by the Government.

The Committee took note of the statements of the Government representative according to which Guatemala was supporting all the actions of the competent authorities in order to conclude the criminal investigations on acts of violence against trade unionists in a prompt and effective manner. The Committee took note that, according to the Government, certain questions raised by the Committee of Experts constituted problems of legal interpretation which could be overcome through the application of the legal rule which was most favourable to the workers. In particular, according to the Government, the problem relative to Decree No. 700-2003 on essential services had been overcome by virtue of subsequent laws.

The Committee underlined that trade union rights could only be exercised in a climate that is free from violence and threats of any kind and requested the Government to make all efforts to guarantee the exercise of trade union rights in a climate of full security for trade unionists and to improve the administrating of justice and avoid impunity. The Committee requested the Government to take the necessary measures to bring the legislation and practice into full conformity with the provisions of the Convention, and to communicate a complete report containing all pending questions, to the Committee of Experts this year. The Committee requested the Government to send concrete information on the number of inspections, the sanctions imposed in cases of violations of trade union rights in all sectors including the maquila, attaching statistics and numbers of trade unions and solidarist associations, as well as on the result of the criminal investigations of the Special Public Prosecutor's Office. The Committee expressed the hope that in the very near future it would be in a position to observe progress in relation to the pending problems and recalled that the technical assistance of the ILO was at the disposal of the Government.

Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

A Government representative said that the good will of his Government had been demonstrated through such concrete actions as its welcoming, in May, the direct contacts mission, the mandate of which the Government had requested to be extended to cover this Convention. A report on the May mission was currently being prepared. Other actions had included the submission to the competent authorities of all the Conventions, Recommendations and Protocols that had been mentioned in the Committee's report of the current year. Guatemala thus demonstrated that it was strengthening the rule of law, and, in particular, its labour relations system, with a focus on fundamental labour rights. Progress had been made, and would continue to be made in that regard. With respect to the first observation in the Committee's report, the speaker agreed that the effective respect of human rights and public freedoms was essential to guaranteeing trade union rights. Consequently, the Special Prosecutor for crimes committed against journalists and trade union members, since its establishment, had considered 58 cases, of which: 71 per cent were threats; 0.5 per cent were homicides or murders; and 28.5 per cent were other. Of the total number of cases, three involved threats to the lives of trade unionists. Investigations had been conducted accordingly, the perpetrators had been identified and relevant legal action had been initiated. No cases of homicides or injuries of trade unionists had been reported for that year. The new Government Prosecutor had replaced the Special Prosecutor investigating such cases, with the goal of guaranteeing enhanced effectiveness of the prosecutor's role. The speaker said that efforts were continuing to be made to further strengthen the Office of the Public Prosecutor so as to improve the effectiveness of criminal prosecution, a task that required the technical and financial cooperation of various national and international bodies. As follow-up to actions already taken and in order to prevent conflicts, the Ministry of Labour and Social Security had, for that year, created a system to address the obstacles that had arisen, so as to ensure that trade union rights were protected, with the valuable support of the recent direct contacts mission of the ILO. He said that an integrated approach to inspection needed to be adopted, so as to involve not only verification and prevention of labour conflicts, but enforcement of the law in cases of infringements or violations as well. The new sanctions system enhanced the role of labour inspection. In that framework, various complaints had been received, all of which had been handled, and had either resulted in conciliatory dispute resolutions, or suitable sanctions. From 2001 to February 2004, efforts had been made to ensure that labour rights were respected as effectively as possible. The new sanctions system had thus started to work and had already produced a decline in acts of violence against trade unionists.

With respect to the second observation in the Committee's report, the speaker agreed that labour legislation should have more flexible eligibility requirements for becoming a trade union leader. In that respect, an important technical-legal aspect needed to be pointed out. Since 1991, Guatemala's Constitution had been considered to be inconsistent with the Convention, and a request for its amendment had been made. However, that did not appear to be necessary since the Constitution in fact developed the principle of in dubio pro operario in article 106, one of the objectives and consequences of labour law, whereby the standard that prevailed was the one which was most favourable to workers. With respect to the third observation in the Committee's report, he said that the Government had submitted to tripartite consultation the relevance and content of the possible legal reform initiative, which would enable overcoming current limitations in terms of calculating how many workers constituted a majority for a strike to be declared legal. With respect to the fourth observation in the Committee's report, he said that the provision of article 106 of the Constitution was taken into account in that the standard that prevailed was the one which was most favourable to workers, that is, the one which had fewer restrictions, in line with the new provision of section 243 of the Labour Code. He recalled that, in 2002, the Committee had warmly received the new provision on the prohibition of strikes in essential services. In that regard, two court judgements had been pronounced over the past three years: one declared calling a strike illegal, and the other, of significant historic value, declared calling a strike legal. The Committee of Experts, the Conference Committee and the recent direct contacts mission had been extremely useful and provided valuable guidance. The indulgence of the Committee was requested with respect to the points contained in the report, and the Committee should have faith in the Government's ability to further advance trade union rights. He requested technical cooperation from the ILO and welcomed the financial cooperation of certain countries. Lastly, it was important that the Committee bear in mind that the peace process in Guatemala was under way.

The Worker members thanked the Government representative for the information that he had provided. The Conference Committee had examined the case of violations of this Convention almost systematically since the 1980s. Year after year, the Government invoked the history of this country and the difficulties encountered in establishing a democratic government following a long period of totalitarian rule and armed conflict. In 2003, the Government had still referred to the structural crisis in Guatemala. Yet, the years were passing and the problems persisted. In 2001, following the direct contacts mission, some legislative developments had been noted. Since then, the comments made by the Committee of Experts noted a persistent situation which seriously undermined the provisions of the Convention. In practice, there was no progress to note with respect to the main points raised by the Committee of Experts. With regard to the Constitutional requirement that union leaders should be of Guatemalan origin, it was the union by-laws and not the legislation that should set the criteria for the eligibility of union leaders. In this respect, the Committee of Experts noted from the Government's report that there had been no legislative progress in this field. With regard to the requirement that workers had to be working in the enterprise or the occupation in order to be eligible for trade union office, the Committee of Experts had pointed out that it could be in the interests of unions to have some officers with legal, economic or other experience, without their necessarily working in the occupation in which the trade union operated, but it had not noted any legislative developments on this matter. With respect to the requirement that, in order to call a strike to obtain the agreement of those working in the enterprise, only the votes cast should be taken into account. However, no improvement had been noted in this regard. Finally, with regard to the imposition of compulsory arbitration without the possibility of having recourse to a strike in the public transport and fuel-related services, the Committee of Experts had indicated that these were not essential services in the strict sense of the term. The Government had said that these decrees had been implicitly repealed in part. But, the Committee of Experts rightly insisted that union rights had to be specifically laid out in the legislation.

The Committee of Experts had been making some of these comments since 1989, that is to say, for 25 years. The legal analysis of this case led to the conclusion that the legislation cited for several years had never been changed. In its observation, the Committee of Experts noted that the Government had submitted its comments to the Committee on Tripartite Affairs and that the Labour Code was currently under reform. The Committee of Experts hoped that it would soon be able to note substantial progress on these matters. However, nothing suggested that a change was forthcoming. In fact, for several years, the Committee of Experts had noted a serious deterioration in the situation, which had worsened in 2003 and 2004, particularly in view of the persistence of impunity in the event of murders and acts of violence, and new cases of death threats and intimidation against trade unionists with the complicity, among others, of the judicial authorities. In this respect, the arbitrary detention of Rigoberto Dueñas, Secretary-General of the General Confederation of Workers of Guatemala (CGTG), for over a year was a good example. Mr. Dueñas was accused of corruption in the Guatemalan Social Security Institute although he completely denied any fraud. Several prominent and respectable employers insisted on his innocence. The members of the ILO direct contacts mission, which had taken place in May 2004, had been able to meet Mr. Dueñas and other imprisoned trade unionists. The imprisonment of Mr. Dueñas derived from the performance of his duties as a union representative. The members of the mission had therefore demanded on 19 May 2004 that he be afforded alternative treatment. Moreover, the period of preventive detention went well beyond the minimum sentences handed down for the offences of which he was accused. In Case No. 2241, the Committee on Freedom of Association had demanded the immediate release of the union leader.

Why was freedom of association not respected in law or practice? Why had those who defended workers been the target of so much injustice? Why were there so many denials of justice in the treatment of the cases? What action was being taken by the special unit created in the Public Prosecutor's Office to improve the effectiveness of criminal investigations of cases relating to trade unionists? Why had the agreement between the United Nations and the Government of Guatemala, signed on 7 January 2004 in New York to establish a commission of inquiry on the existence of illegal entities and clandestine security forces, been rejected by the Guatemalan Congress? The governments and administrations of the country had continually raised the issue of separation of the three branches, a principle that could be respected, but which in no way implied that law and justice should not be respected. In democratic societies, independence was the basis for charging and penalizing those who did not respect the legal procedures. However, in the present case, in the light of the punishments imposed upon those who defended workers and the prison sentences imposed on trade unionists, it could only be concluded that no progress had been made.

The Employer members recalled that the Conference Committee had discussed cases relating to violations of freedom of association in Guatemala for the past ten years, either in relation to this Convention or Convention No. 98. They noted that, in the present case, the Committee of Experts had commented on five points, of which three were related to the right to strike, which was not covered by the present Convention. Nevertheless, two of the issues raised by the Committee of Experts did indeed deserve the attention of the Conference Committee. The first of these points concerned serious acts of violence against trade unionists, including cases of murders and death threats, which were entirely unacceptable. According to the Government, a special unit had been established in the Public Prosecutor's Office and had begun operations with a view to improving the effectiveness of investigations into acts of violence and murders of trade unionists. The Government representative had also said that since 2002 there had been no new reported cases of violence or the murder of trade unionists. The Employer members also recalled that the Committee on Freedom of Association had not reported any new cases. They nevertheless shared the deep concern of the trade unions with regard to this situation and recalled that a climate of violence and pressure was not conducive to the exercise to the rights related to freedom of association. They further noted the statement by the Government representative that the special unit had already dealt with 58 cases and that labour inspectors had special orders to investigate cases of violence against trade unionists. However, the Employer members did not believe that they were in conditions to determine whether these measures were adequate in practice.

In recognition of the fact that Guatemala was still suffering the consequences of a long civil war, they endorsed the request by the Committee of Experts for further information on the outcome of the work of the special unit. They also noted the direct contacts mission that had taken place recently and called upon the Government to provide a detailed report relating to the results of the mission. Although the Government had already indicated its willingness to take the appropriate measures to the Conference Committee in 2002, they considered that the Government should once again be called upon to take the necessary measures to eradicate all threats of violence against trade unionists. With regard to the requirement under the Constitution of being of Guatemalan origin in order to be a trade union leader and to be actually working in the enterprise or occupation to be eligible for trade union office, they recalled that this was not in accordance with the Convention. In this regard, they noted the Government representative's statement according to which the Constitution stipulated that, in the event of conflict between two labour law provisions, the most favourable provision to the worker was applicable. However, they wondered whether another more favourable position existed on this particular subject, as they only had knowledge of the provisions contained in the Labour Code, on which the Committee of Experts had based its comments. With regard to the view expressed by the Committee of Experts recognizing that a State might require foreign workers to have resided in a country for a reasonable period before becoming eligible for trade union office, they observed that this was a matter for internal regulation and did not therefore need to be addressed by the legislator. However, the Government could decide to follow the advice provided by the Committee of Experts on this subject and the Government representative had indeed expressed his Government's willingness to do so.

On the subject of the requirement that, in order to call a strike, the workers needed to constitute 50 per cent plus one of those working in the enterprise or industry, the Employer members observed that the Committee of Experts had created its own jurisprudence in this respect. Irrespective of the fact that the Convention did not address the right to strike, they recalled that the issue of the quorum to call a strike was the subject of widely differing regulations in the countries of the world. It was not therefore surprising that the Committee of Experts had not been able to establish a model on this matter which was valid throughout the world. With regard to the question of compulsory arbitration, the Employer members merely wished to recall their well-known position on this matter, particularly in relation to the definition of essential services. In conclusion, the Employer members expressed concern about the first two issues raised by the Committee of Experts and hoped that the new Government would be prepared and able to take further measures in this respect. They also hoped that the Committee would not need to examine this case again in the future, although this would depend on the measures adopted by the Government.

The Worker member of Guatemala affirmed that Guatemala was relapsing into violations of freedom of association. Fifty years after the ratification of the Convention, it was not permitted to set up new trade unions in Guatemala and attempts were being made to eliminate those that existed. He confirmed that there was no state policy designed to respect this right. He indicated that there were countless administrative obstacles to setting up trade unions, and finally when workers who had organized achieved the recognition of a trade union, they were threatened, intimidated, persecuted and dismissed. He referred by way of illustration to the propane gas enterprise that belonged to the TOMZA group as an example of the dismantling of trade unions. He stated that the workers of the maquila industries were the victims of major trade union repression. According to the Labour Code, if a worker was dismissed on trade union grounds he should be reinstated within 24 hours, but that nevertheless there were workers who had been waiting for up to eight years for their cases to be resolved, and when there were judicial decisions in favour of workers, they were not observed, as the general environment was one of total impunity. He indicated that, although the Tripartite Commission on International Labour Affairs existed in application of Convention No. 144, there was still no forum where labour disputes were resolved or where the issue of freedom of association was dealt with, although these measures had already been proposed by the workers. Although the Government liked to mention that it had established the Office of the Public Prosecutor for offences against journalists and trade unionists, this body was merely used to deceive the international community. He expressed concern that penalties were being imposed in cases of labour disputes, as in the case of the María de Lourdes plantation. The courts were not impartial and they did not react to the requests of the workers that their rights be respected, although they did so when it was the employers who were making the accusations. Lastly, he referred to imprisoned trade unionists accused of terrorism and to Mr. Rigoberto Dueñas who, he said, had been imprisoned for a year, accused without any evidence of being involved in social security fraud. He indicated that the ILO direct contacts mission had visited them in prison.

The Employer member of Guatemala expressed the belief that the examination of the case of Guatemala by the Committee was premature, as the report of the direct contacts mission that had recently visited the country had not yet been received. He expressed his concern at the comments of the Committee of Experts in paragraph 1 of the observation, as he considered that facts were given as true and proven when they were only complaints and comments conveyed to the Committee of Experts and the Committee on Freedom of Association. He also expressed concern with regard to the content of paragraph 5 which, in addition to referring to a subject that was not covered by the Convention, namely the right to strike, did so by suggesting that the inexistence of strike action and, what was worse, their declaration as being illegal, could be interpreted as a violation of freedom of association and that this interpretation would be contrary to the spirit and the letter of the Convention. He also considered that some of the comments of the Committee of Experts did not take into account the fact that the legal amendments proposed were faced with obstacles of a constitutional nature or relating to public policy. Furthermore, the subjects under discussion were legally questionable and the Committee of Experts should therefore have assessed in a positive manner the respective tripartite consultations held and the discussions before the Congress of the Republic. He concluded by requesting the Worker members to avoid making use of the ILO's supervisory machinery in order to call into question bilateral commercial agreements concluded by the member States of the Organization, as this could only prejudice the credibility of these mechanisms.

An observer representing the Latin American Central of Workers (CLAT) recalled that Mr. Rigoberto Dueñas, the workers' representative at the Guatemalan Social Security Institute, had now been in detention for a year for having denounced the corruption in that organization and that, despite the fact that the offences of which he was accused were not penalized by sentences of imprisonment, he was still under detention. He indicated that the ILO mission that had taken place some days previously had been able to visit the detainee and had collected numerous statements from various quarters claiming that Mr. Dueñas was innocent. He added that the fact that a new Government had just taken office could not be used to justify the unjust detention of workers' representatives and the high level of impunity prevailing in Guatemala. He added that since 1992 his trade union organization had suffered the murders of more than 15 of its officials and that no proceedings had been initiated in respect of these cases and no charges had been brought. At the end of February 2004, some 33 officials from the transport sector had been imprisoned for demonstrating against a decision by the Government of the City of Guatemala, and they had been accused of committing terrorist acts. He concluded by saying that, during the sad years of civil war in Guatemala, when many sectors backed violence as a way of overcoming violence, the trade union organizations promoted COCEPAZ, which had collaborated in bringing peace back to the country.

The Government member of Norway, also speaking on behalf of the Government members of Denmark, Finland, Iceland and Sweden, noted with great concern the many murders, acts of violence, death threats and intimidations against trade unionists in Guatemala. He welcomed the indication by the Government that a special unit had been established in the Public Prosecutor's Office and had begun operations to improve the efficiency of criminal investigations into acts of violence. He requested the Government to provide information on the activities of this unit in order to assess any improvements in the situation concerning impunity enjoyed by those perpetrating anti-trade union acts. He also welcomed the positive information provided by the Government representative. He expressed the firm hope that the Government would take immediate action to ensure that human rights and fundamental freedoms, which were essential to the exercise of trade union rights, were effectively observed. He noted with particular interest that the Government had requested technical assistance from the ILO and welcomed the visit to the country by the direct contacts mission in May 2004 in relation to Convention No. 98, which was a positive step forward. However, he emphasized the gravity of the situation and pointed out that trade union rights could only be exercised in a climate that was free from violence and pressure. Finally, he hoped that in the near future it would be possible to note that significant progress had been achieved in practice in these areas and stated that the Government's intervention had given confidence of their good intentions.

An observer representing the World Confederation of Labour (WCL) considered that, despite the fact that it was 52 years since Guatemala had ratified the Convention, successive governments had implemented policies and strategies of extermination, repression, persecution, imprisonment and the murder of trade union officials. He indicated that 30 workers had been detained, as confirmed by the ILO direct contacts missions of 2001 and 2004. Those cases demonstrated the impunity and precarious application of justice, and even judicial officials recognized that corruption was the most serious problem facing the judicial authorities. He recalled that it was a year since the detention of the assistant general secretary of the CGTG, Mr. Rigoberto Dueñas, and indicated that several public officials recognized that Mr. Dueñas was no more than a scapegoat. The direct contacts mission had consulted the trade union movement and the employers, which had both confirmed that the detention of Mr. Dueñas was unjust and that in the judicial proceedings against him due process had been infringed, and that it was probably for this reason that the direct contacts mission had requested an alternative to imprisonment for him. He considered that Guatemala was once again at fault with the Committee of Experts and the ILO itself. Successive governments had not had, and still did not have, the political will to protect and respect trade union rights and freedoms. He added that, during the 36 years of civil war, organized trade unionists constituted a mere 5 per cent of the economically active population, while during the 18 years of formal democracy this percentage had fallen to 2.5 per cent. He concluded that dozens of rural trade unions had been destroyed and thousands of workers dismissed, including rural workers, those in the maquila industry and in multinational enterprises, where unionized workers had been waiting for two years since their dismissal without being reinstated in their jobs.

The Worker member of France reiterated, with reference to the comment made by the Employer member of Guatemala, that his country had no interest in the bilateral trade agreements and economic questions that were often raised. For a number of years, Guatemala had constituted a case of continuous and serious violation of this Convention. The situation prevailing in the country was a matter of extreme concern, especially with regard to basic human rights and labour law in particular. The Committee of Experts had also commented on violations relating to the application of Conventions Nos. 29, 100, 111 and 144. This illustrated the situation of workers, which necessarily impinged upon freedom of association. In its observation, the Committee of Experts referred to a significant number of murders, acts of violence, death threats and intimidation against trade unionists, which reflected a general situation of non-compliance with human rights and public freedoms, which were essential for the effective exercise of trade union rights. With respect to the decrees imposing compulsory arbitration without the possibility of having recourse to a strike in many sectors, the Government had indicated in its report that the decrees criticized by the Committee of Experts had been implicitly repealed in part. He called upon the Government to explain this new form of explanation in a much more comprehensible manner. He wondered whether those decrees had been effectively repealed and whether the right to organize specified in the United Nations Covenant on Civil, Political and Social Rights needed to be recalled yet again. The exercise of this right allowed trade unionists to organize their activities. In conclusion, the case of Guatemala constituted a serious case of violation of civil and political freedoms and jeopardized freedom of association. The new Government bore a heavy burden if it wished to achieve observance of basic rights at work, thereby giving effect to the direct contacts mission. It was to be hoped that the good will demonstrated by the Government would be translated into practice and that the measures mentioned would be given effect.

The Worker member of Norway recalled that the case of Guatemala had been discussed for many years and that each year the Government had asked for time to resolve the discrepancies with Conventions Nos. 87 and 98. Yet the workers in Guatemala continued to be the victims of flagrant violations of labour rights, including the right to strike. She welcomed the recent visit to the country by a direct contacts mission and looked forward to hearing the concrete measures proposed. The violations in question included the dismissal of workers because of union activities in both the public and private sectors, including cases in the Ministry of Health and Social Security, the Eskimo plantation in Port Quetzal and the banana firm COBSA. The Government had argued that all cases had been resolved through judicial proceedings, but in practice this merely meant that the claims by workers for reinstatement had been rejected by the courts. The violations of labour rights in the banana sector were well known. On the La Inca plantation, 600 workers had been dismissed under the pretext of lack of productivity, despite the fact that labour inspectors had confirmed that production was absolutely satisfactory. As in many other cases, private security forces had been used to intimidate the workers. Banana production was now being moved to the south coast, where the workers were not organized. The situation in free trade zones in the maquila industry was also well known. Organized workers were dismissed as soon as a trade union was established, which was in violation of the ILO's Conventions and Guatemala's labour laws.

Despite the firm hope expressed by the Committee of Experts that the Government would take prompt action to ensure that fundamental trade union rights were protected, the opposite was actually occurring. With regard to the right to strike, the Committee of Experts had clearly stated that the Government should amend section 241 of its Labour Code, respecting the required number of workers at a workplace to be able to call a strike. In her view it was astonishing that such a violation of the Convention still existed. She also shared the concerns of the Committee of Experts regarding the prohibition of sympathy strikes, the imposition of compulsory arbitration when a strike might occur in the public sector and the declaration of public services as essential, when they clearly were not according to the criteria of the ILO. She emphasized that there had been too many examples of the Government promising to amend labour laws and then failing to do so, while the harassment of workers continued in both the private and public sectors. She therefore called for the Government to assume its responsibility to change the situation and warned that a tripartite system would never function unless the Government changed the labour laws, respected the right to strike and stopped the violations of trade union rights.

The Worker member of Nicaragua expressed his profound concern at the violation of the right to freedom of association and at the related government repression. He confirmed that the current trend was becoming very dangerous, as labour disputes were being treated as criminal offences and penal proceedings were being brought against workers following pressure by governments and employers, including pressure to reform criminal and procedural codes for this purpose. An example was Guatemala, where there were cases of trade union officials belonging to the CGTG who were being accused of terrorist activities in the dispute in the transport sector. This had occurred previously in the banana sector and also in his own country, where he maintained that he had been the victim of repression by so-called "democratic" governments. Persecution was taking place in the export processing zones (EPZs) where there were "blacklists" to prevent workers from becoming organized and establishing trade unions. He endorsed the appeal to free the trade unionists being held prisoner in Guatemala. To conclude, he affirmed that the people of the region were becoming aware of the need to fight for their economic, social and labour rights and affirmed that in this struggle they would surely be supported by the ILO and the international community.

The Worker member of the United States noted that a new Government had been recently elected in Guatemala and he wished the Berger administration every success. However, the election of a new president was not a convincing reason for having accepted and received the ILO direct contacts mission only a couple of weeks before this year's Conference. Moreover, the fact that it was an election year in 2003 did not excuse the lack of progress in Guatemala regarding Conventions Nos. 87 and 98 since the 2002 and 2003 Conferences. In spite of the complaints heard from the Employers and Governments about the presence of Central American countries on this year's list, one should not be surprised that Guatemala was among them. As the Conference Committee had observed over the last 20 years, there were critical and chronic violations of Conventions Nos. 87 and 98. Between 1994 and 2002, the ILO's Committee on Freedom of Association examined 21 Guatemalan cases, nine involving trade unionists as targets of assassinations, disappearances, assaults and death threats, and 12 concerning anti-union dismissals. The Committee of Experts' report in 2004 accurately referred to several examples of how Guatemalan law violated the Convention. He regretted that conventional wisdom continued to circulate, without foundation, that Guatemala's compliance with the Convention substantially improved with the 2001 labour law reforms. The right to strike during the harvest in the rural sector was undermined by section 243 of the Labour Code which gave the Executive the power to prescribe work stoppages that affected economic activities essential to Guatemala. The reform of section 216 required signed and written proof from 20 or more workers to form a union and thereby created a list of pro-union activists susceptible to employer reprisals and imposed a literacy requirement. The law continued to impose a threshold of 50 per cent plus one of all workers in an entire industry to achieve industrial union recognition. In sectors with thousands of workers, such as agriculture, this was prohibitive. The revision of section 233 violated the Convention by increasing the requirement from two to four unions to form a federation, and from two to four federations to form a confederation. The reform of section 379 imposed liability on individual workers for legal damages resulting from a strike or other collective action and created a chilling effect on the exercise of freedom of association rights.

As noted by the United States State Department in its 2004 Human Rights Report, by the United Nations Verification Mission in Guatemala in its 2001 report and by the Committee on Freedom of Association in paragraph 91 of its November 2001 report, an ineffective labour court, labour inspectorate and enforcement regime fostered an environment of anti-union reprisals and dismissals. The United States State Department report found that, although the Labour Code provided that workers dismissed illegally for exercising union activities should be reinstated within 24 hours, in practice, employers filed a series of appeals or simply defied judicial orders for reinstatement. It should not be a surprise that, according to the Guatemalan Labour Ministry's own statistics, only about 2.3 per cent of the workforce were in registered unions. Nor was it a surprise that, given the labour law regime and labour relations climate, there was a total of two collective bargaining agreements covering only 1,300 workers in the EPZs which employed more than 125,000 workers. Even if all of the de jure violations of the Convention were corrected, there was still the disturbing, current climate of assassinations and death threats directed against trade unionists and impunity for the perpetrators. In 2002, the Inter-American Commission on Human Rights ruled that article 16 of the American Convention on Human Rights, which guaranteed freedom of association, was violated by Guatemala when Government agents, in collaboration with the owners of the plantation "La Exacta" killed three unionists and wounded 11 others. He reminded the Government representative that there had been active death threats directed against trade unionists since 2002, including those who were advocating the innocence of jailed union leader, Rigoberto Dueñas. With respect to the United States Central-American Free Trade Agreement, it only required governments to comply with their national labour laws and did not require any prior harmonization in law or practice with the fundamental ILO Conventions. He asked that the Conference Committee took the strongest and most effective measures in this case since there was much at stake, including the lives of Guatemalan workers.

The Government member of Costa Rica stated that she hoped that the efforts made by the new Government to promote fundamental human rights would be taken into account. She urged the Committee to acknowledge the efforts made by the Government to protect trade unionists and to penalize those who violated their rights. She hoped that the fact would be taken into account that Guatemala was recovering from a situation of war which it had experienced during the previous decade and that it needed time for reconstruction.

The Government representative declared that he had taken due note of the comments made and stated that, in the first place, he wished to refer to the aspects that were related to the observation of the Committee of Experts. He hoped that the documentation provided would shed light on the efforts made to combat the persecution of trade unionists. He indicated that the climate of violence had changed. Some speakers appeared to think that nothing had changed. He called upon them to look at the present from a forward-looking perspective. He maintained that the establishment of the special unit had not been done as a pretext, but was an expression of the will to resolve the problems and to take into account the points raised by the Conference Committee. He said that fundamentally many of the interventions had referred to the past and, even though many things could have been done in a different way in the past, what was important was to see what had been done and what was being done this year. However, he was not trying to say that what had been done was sufficient, as the social situation always required something more. But, he wanted it to be seen that measures were being taken against anti-union activities.

In the second place, he indicated that he wished to refer to matters that were not related to the observation of the Committee of Experts and the cases of the Committee on Freedom of Association, namely the situation of Rigoberto Dueñas and Victoriano Zacarías. He said that Rigoberto Dueñas was facing trial for a common law crime, namely for social security fraud for a very high amount. He had not been detained as a trade unionist, but as a member of the Executive Board of the institution, alongside other persons not related to the trade union, but, for example, to the university. He recalled that corruption was a problem of absolute priority at the national level. He added that he had heard that Rigoberto Dueñas was being treated as a delinquent. He denied that this was the case and said that the accused benefited from full guarantees, as his case had not yet been tried, and enjoyed the presumption of innocence. His detention had been described as arbitrary, but he said an arbitrary detention in his view occurred only when it was not the outcome of a judicial order, and that in the present case an order had been issued by the competent judge. In his view, a case was being raised that bore no relation to the Convention, and it was being said that this case demonstrated anti-union attitudes and that labour disputes were being penalized, the case was being used to call into question the whole system. In his opinion, these allegations were extremely grave. He wondered whether they constituted an attempt to influence the decisions of the judges and to manipulate public opinion. The present Government had succeeded in raising the level of trust in the judicial system. It was therefore very serious to claim that there had been new cases of murders and that strikes were prohibited during harvest times, as this measure had been amended in 2001, as could be seen in the updated Labour Code. In conclusion, he called upon the Committee to strengthen the machinery for the application of international labour standards and declared that in future sessions he hoped to be able to demonstrate the progress made in his country with the collaboration of the ILO.

The Worker members said that there had been no progress in relation to the legislation in Guatemala for many years. The fulfilment of the commitments undertaken by the Government during the direct contacts missions and the tripartite meeting held on 20 May 2004 was still awaited. As indicated by the comments made by the Committee of Experts and the large number of cases dealt with recently by the Committee on Freedom of Association, the situation had deteriorated in practice, as noted by the members of the direct contacts mission. With regard to the case of Mr. Rigoberto Dueñas, a leader of the CGTG, his immediate release was called for, in accordance with the conclusions of Case No. 2241 of the Committee on Freedom of Association. The Worker members contested the statements made by the Government representative on the case of Mr. Dueñas. The arguments put forward were unacceptable and contradicted the findings of the direct contacts mission and the conclusions of the Committee on Freedom of Association. The Government of Guatemala had frequently requested technical assistance from the ILO. The Worker members evidently supported the assistance that could be offered by the ILO to a country to bring its law and practice into conformity with Conventions. In the present case, however, political will was needed, and particularly the will to establish the rule of law and respect for trade union rights. Urgent action was needed. The Worker members therefore called for the Committee's conclusions to be placed in a special paragraph of its report.

The Employer members noted that frequent reference had been made during the discussion to specific cases of individuals about which the Committee knew very little and which were not covered by the report of the Committee of Experts. This placed the Conference Committee in a dilemma, as it moved the discussion away from its traditional basis, which was the report of the Committee of Experts, on which the Worker members in particular often relied in their interventions. In such discussions, the danger arose from the fact that the only source of the information provided was the oral interventions of the members of the Committee. They recalled that this Committee was not a criminal or legal body with competence to establish whether or not alleged facts were true, even though the members of the Committee evidently benefited from the right to free speech. In conclusion, they called upon the Government to continue to strengthen the efforts that were being made to address the problems arising in relation to the application of the Convention and to provide a detailed report on the measures adopted.

The Committee noted the information provided orally by the Government representative and the discussion that followed. The Committee noted with concern that the pending problems related to acts of violence against trade unionists and various obstacles to the freedom of workers' organizations to undertake their activities. The Committee also noted that the Committee on Freedom of Association had examined a significant number of cases raising issues concerning the application of the Convention. The Committee noted that in May 2004 a direct contacts mission had visited the country; it also noted a number of commitments made by the Government during the mission. The Committee noted the measures indicated by the Government to ensure the security of trade unionists and to punish violations of trade union rights. The Committee noted that the Government had submitted the remaining problems relating to the application of the Convention to the Tripartite National Commission with a view to carrying out the necessary legal reforms as soon as possible. The Committee recalled that respect for civil liberties was essential for the exercise of trade union rights. In this respect, the Worker members had referred to the specific case of Mr. Rigoberto Dueñas, who was held under preventive detention. The Committee requested the Government, in consultation with the social partners, to take the necessary measures without delay in both law and practice to guarantee the full application of the Convention, with special reference to the pending problems concerning acts of violence against trade unionists. The Committee hoped that in the near future it would be able to note substantial progress in practice with regard to the various points raised, and requested the Government to provide a report to the Committee of Experts on all the remaining issues so that it could examine the report together with that of the recent direct contacts mission.

Individual Case (CAS) - Discussion: 2002, Publication: 90th ILC session (2002)

A Government representative indicated his surprise regarding the fact that his country had been selected in respect to Convention No. 87, since the Committee of Experts had noted in its report the progress made. He expressed his satisfaction for the fact that the Committee of Experts and the Freedom of Association Committee had recognized that amendments to the Labour Code introduced in 2001 complied with many of its requests, and for the fact that it had mentioned the progress made in the country regarding the application of trade union rights. He expressed his country's commitment to continue to collaborate with the supervisory mechanisms of the ILO.

The speaker recognized that the enjoyment of freedom of association in Guatemala had not always been satisfactory, since, from 1954 to 1985, various authoritarian regimes had succeeded each other and there had been an internal military conflict which had lasted until 1996 and had been accompanied by the breakdown of the domocratic constitutional order and of the rule of law. However, in 1986, a democratic transition had been initiated, which had made possible the signing of the Peace Accord of December 1996 and had supported international cooperation. Account had to be taken of the fact that rebuilding the institutional legal order was a task requiring years. In this regard, the reforms recently introduced in the country to guarantee the freedom of association and other labour rights through the amendment of the Labour Code and the reinforcement of the Ministry of Labour were important. The speaker stressed that his predecessor had a vast experience with trade unions and had initiated a movement to defend workers which he would keep up, having defended the workers before from the Congress of the Republic, the Office of the Ombudsperson and the Mission of the United Nations for the Verification of the Peace Accords (MINUGUA). This had allowed to strengthen the verification of the respect of labour rights, the decentralization and increase of the resources of the Ministry of Labour and the ability to set up procedures for the registration of trade union organizations.

One of the major transformations achieved through this labour reform was that it had given the Ministry of Labour the capacity to sanction, that is to facilitate the sanctioning and protection of labour rights through administrative procedures. Last year, on the occasion of the direct contacts mission made to his country by the Committee on Freedom of Association, the Committee had qualified this reform as encouraging with a view to the application in law as well as in practice of Convention No. 87, particularly in Case No. 1970. As an example, the speaker mentioned that in January of this year a sanctions unit had been created, which had made possible the imposition of fines to 800 enterprises which had violated the relevant provisions (40 enterprises in January and 350 in May). In this manner, the Ministry of Labour had increased its efficiency to rectify situations which the labour courts would have taken months or years to resolve.

For its part, the judicial power was aware that international labour standards were indispensable, which was why in April 2002 it had requested technical assistance from the ILO and signed a cooperation agreement to that effect. Moreover, with the assistance of the MINUGUA, the Government was reforming the judicial apparatus of the country to strengthen labour justice. In relation to the fight against labour impunity, the Committee on Freedom of Association had referred to Case No. 1970 in its report of November 2000 and had noted with interest that, prompted by the direct contacts mission, a special unit of the General Ministry, aimed at improving the efficiency of investigations of crimes committed against trade unionists, had begun to function in June of the same year. He indicated that the Government reiterated its commitment to continue to respect the recommendations of the aforementioned mission and of the Committee on Freedom of Association, as well as the observations of the Committee of Experts.

To this effect, on 8 February 2002, a high-level labour committee had been created, integrating ministers and trade union representatives of the Popular and Trade Union Action Unit (UASP). It would deal, amongst other topics, with the new statute of the public service and the right to strike of state employees, which would respect the modifications emphasized by the Committee of Experts, including the repeal of Legislative Decree No. 35-96. In reference to the comments made by the Committee relative to the application of section 390, paragraph 2, of the Penal Code, the speaker confirmed that it had been abridged by the suppression of section 257 of the Labour Code. Moreover, he emphasized that, since the peace accords of 1996, the Government had prohibited the violation of human rights and had promised to construct an institutional democracy that would guarantee the effective exercise of human rights and fundamental liberties, including freedom of association. Aware that the respect of labour standards and rights was not only guaranteed through sanctions but also through initiatives, the speaker indicated having rewarded the Association of Corporations of Exporters of Non-Traditional Products for the concern it had shown regarding labour rights. It also resorted to dialogue with social partners which the Government remained ready to favour through tripartism, and specifically with the technical assistance of the ILO. The speaker hoped that, like the direct contacts mission and the Committee of Freedom of Association, the Committee would note with satisfaction the progress made in the country.

The Employer members observed that the Government had showed its preparedness to take appropriate measures following the comments that had been formulated in previous years by the Conference Committee, the direct contacts mission in 2001 and the discussions held in the Conference Committee. The Government had amended its legislation, which had been the subject of a long list of criticisms by the Committee of Experts. The Committee of Experts had noted the legislative amendments with satisfaction, which represented the expression of highest appreciation. Most of the amendments requested by the Committee of Experts in the past had referred to the right to strike. The Employer members were of the opinion that the Government would not have been obliged to introduce these amendments to comply with the provisions of the Convention, since it was the well-known employers' position that the right to strike did not derive from this Convention. It was, however, to the Government's discretion to decide upon its national legislation.

Only two issues remained the object of criticism by the Committee of Experts. The first issue concerned the requirement of being of Guatemalan nationality to be eligible to join the trade union executive committee. The Employer members noted the Government's indication that this requirement derived from the Constitution. Although it would take time to amend the Constitution, it was nonetheless possible. The Employer members observed that the Government representative had not given any indication in this regard. The second point criticized by the Committee of Experts referred to the requirement to be actually working in the enterprise or occupation in order to be eligible for trade union office. This provision was also known from other countries. Nevertheless, it was contrary to freedom of association, since it clearly was for the trade unions (and the employers' association) to determine who should take office. The Employer members believed that this had to be introduced in the national legislation.

Turning to the Committee of Experts' view on the right to strike, including its definition of essential services, the Employer members recalled their position that the right to strike did not derive from the Convention. In this regard, they did not support the Committee of Experts.

As to the practical application of the Convention, the Employer members observed that the prevailing political climate, characterized by administrative repression of trade unions, did not promote the exercise of trade union rights. The existing unfavourable political climate should therefore be reflected in the conclusions of the Conference Committee. The Employer members indicated that employers' associations were also the object of administrative harassment. A complaint had been submitted by some employers' associations and the Committee on Freedom of Association would examine it in the future. In conclusion, the Employer members did not consider the Convention to be applied in practice. Therefore, the Government had to take appropriate action to allow social partners to exercise their rights enshrined in Convention No. 87.

The Worker members thanked the Government representative of Guatemala for his explanations. This case had been on the agenda of this Committee since the 1980s. Given the fact that the situation was still far from being in conformity with the Convention, the Worker members considered it necessary to discuss it once again. The peace agreements signed in Guatemala in 1996 seemed to permit a passage to a new stage in the process of the pacification of the country. Unfortunately, genuine peace was possible only if social justice was guaranteed. But over the past few years, it appeared that social justice had not been necessarily respected. The exercise of freedom of association was almost systematically hampered. Following numerous cases of violation of freedom of association and multiple complaints examined by the Committee on Freedom of Association over the past few years, a direct contacts mission visited Guatemala in April 2001. This Committee once again discussed the case at the 89th Session of the International Labour Conference. Since then, Ms. Hilani, special representative of the Secretary-General of the United Nations, visited Guatemala in order to analyse the delicate situation of human rights, particularly trade union rights. In addition, over the past few months, other violations of the Convention, had been reported to the Committee on Freedom of Association.

In its latest report, the Committee of Experts highlighted legislative matters and problems of practical application of the Convention. Regarding the legislation, certain gains obtained by the adoption by the Congress of the Republic of Legislative Decree No. 13-2001 of 25 April 2001 and Legislative Decree No. 18-2001 of May 2001 led to progress on certain points. However, the Committee of Experts pointed out that other legislative provisions were still not in conformity with the Convention. Moreover, it requested particulars on the essential aspects related to the exercise of freedom of association which concerned provisions of the Penal Code imposing penalties of imprisonment on anyone engaged in acts paralysing or disrupting the running of enterprises which contributed to the economic development of the country. Reference was also made to compulsory arbitration without the possibility of resorting to a strike in public services which were not essential in the strict sense of the term.

Regarding the application of the Convention in practice, the numerous cases examined by the Committee on Freedom of Association which were referred to in the Committee of Experts' report and evaluated by the direct contacts mission in the country, were unfortunately eloquent. These concerned in particular acts of anti-union discrimination, threats and violence against trade union leaders, violation of rights to bargain collectively and searches of trade union premises.

Regarding the murders of trade union leaders reported in Case No. 1970, the Worker members pointed out that the Committee on Freedom of Association concluded last March that it was important that the procedures relating to acts of discrimination should advance rapidly, since excessive delay was equivalent to a denial of justice. The Committee of Experts emphasized that trade union rights could be exercised only in a climate which was free of violence and pressure. It expressed the very firm hope that the Government would make every effort to ensure the effective observance of human rights and of fundamental freedoms essential to the exercise of trade union rights.

The Worker members wondered whether it was possible to guarantee fundamental human rights in circumstances where the workers' organizations were subject to searches, threats, dissolutions and where the right to strike was systematically under attack.

The Worker members shared the request reiterated by the Committee of Experts for the Government to ensure the application of the principles of the Convention. The Government should, without delay, take the necessary measures with a view to ensuring the following:

- amendment, without further delay, of legislative provisions which infringed the provisions of Convention No. 87;

- the provision, as early as possible, of the information requested by the Committee of Experts as regards legislative provisions concerning arbitration and those of the Penal Code concerning penalties of imprisonment in the case of acts paralysing or disrupting the running of enterprises which contributed to the economic development of the country;

- the provision of a genuine protection of trade union leaders and their activities to ensure them of a climate of peace and security, that guaranteed an impartial, rapid and efficient judicial system and reinforced the social dialogue;

- the lifting of the impunity protecting the perpetrators of physical and intellectual anti-trade unions acts, which included numerous cases of threats against trade union leaders.

The Worker members recalled that the Preamble to the ILO Constitution emphasized that genuine peace could be established only if it was based on social justice. Social justice depended on the free exercise of a fundamental right, freedom of association, which in turn was closely related to the effective observance of human rights and fundamental freedoms.

The Worker member of Guatemala stated that many of the members present at this meeting had witnessed and heard, to the point of saturation, constant denunciations of violations of the human rights of Guatemalan workers, especially those pertaining to freedom of association. He therefore thanked the Committee on Freedom of Association for sending a direct contacts mission last year in order to verify in situ the effect given to the recommendations of Case No. 1970. This case, which was far from being an isolated one, related, among other allegations, to acts of violence, death threats, assassinations, breaking and entry, and attempted abductions, acts of anti-union discrimination, physical aggressions and other violations. The Committee on Freedom of Association had expressed itself carefully on this tragic situation and had stated that it had been profoundly concerned by the excessive length of the proceedings which amounted to a denial of justice. If one day justice were done, it would often be after about three to eight years of slow, non-transparent and exhausting procedures destined to discourage and destruct the unions which had become distrustful of the law, justice and democracy. No doubt, the workers did not ignore the legal and theoretical reforms which had been mentioned on the occasion of the direct contacts mission and introduced by Legislative Decrees Nos. 13 and 18 of 2001 by which the Labour Code had been amended. However, these reforms had been introduced and approved without consulting the trade union movement, contrary to Convention No. 87 and the requests that the ILO had formulated already many years ago. Moreover, they had not led to the introduction of the fundamental changes that had been hoped for and that the national trade union movement had incorporated in the draft reform of the Labour Code to which the previous Labour Minister had adhered at the 88th Session of the Conference. Since the democratic transition had started in Guatemala, eight labour ministers had participated in this Committee, conscious of the tragic conditions surrounding the trade union movement of Guatemala especially in the sectors of agriculture, textiles and public service at the municipal level. The anti-union dismissals, like those complained of in Case No. 1970, remained unpunished in spite of the court orders of readmission. The ministers in charge of implementing the law did not have the necessary support from the police to oblige the employers to execute the court orders but did have such support when it came to proceeding with the removal of workers. The exclusion and privileges were reprehensible and justice delayed was no justice at all. The suffering inflicted upon workers by the violation of freedom of association was not demonstrated only in Case No. 1970, since the Committee on Freedom of Association had heard a whole series of denunciations of violations of Convention No. 87, namely for unjustified dismissals with use of force, abductions and death threats of trade union leaders, and assassinations which had been left unpunished. In the public sector, the Government had issued a government agreement (No. 60 of 2002), which prohibited not only strikes but also collective bargaining in this sector, in order to satisfy the commitments made towards the International Monetary Fund. The corruption and impunity prevailing in the country manifestly put into question the legitimacy of democratic institutions and severely hurt the Guatemalan trade union movement. The speaker thanked the various solidarity missions of the trade union movement all over the world, and asked for the inclusion of his country in a special paragraph.

Another Worker member of Guatemala referred to pages 267-269 of the Committee of Experts' report and stated that the amendments to the Labour Code aimed at adapting its provisions to the Committee of Experts' recommendations did not signify that freedom of association was respected in the country. Indeed, the country had not yet adjusted its legislation on all the recommended points. More particularly, it was necessary to repeal the provision of the Penal Code (section 390(2)) imposing a penalty of imprisonment of 1-5 years for anyone engaged in acts aimed at paralysing or disrupting the running of enterprises which contributed to economic development of the country, with the intention of causing damage to national production. Similarly, it was necessary to repeal the requirement of compulsory arbitration before resorting to a strike in public services such as public transport and energy provision, which were not essential in the strict sense of the term, as well as the prohibition of inter-union sympathy strikes. He underlined the fact that the Government had submitted a series of amendments to the Labour Code which were prejudicial to workers, in that they were denaturalizing the procedural labour law, enlarging the powers of judges and jurisdictional functions of the Ministry of Labour, thus worsening the labour rights situation. Freedom of association only existed on paper, since in practice, workers were victims of dismissals and changes that worsened their conditions of work. The lack of conformity of the national legislation with the international instruments was a violation of Convention No. 87: workers could not establish trade unions, public and private employees were victims of persecutions and threats for their union activities, and certain workers had to wait for more than seven years to be reinstated in their jobs, having been dismissed without a valid reason. In this climate of labour impunity, three workers of the enterprise "Exacta S.A." had been murdered by the national police, and the Public Prosecutor had failed to prosecute those responsible, claiming there was insufficient proof of their guilt. All these allegations were submitted in cases Nos. 2017 and 2202 treated by the Committee on Freedom of Association. The speaker suggested that this Committee should include the case of Guatemala in a special paragraph of its report.

The Worker member of the United States wanted, before proceeding with his intervention, to respectfully acknowledge the tragic passing away of Juan Francisco Alfaro, former Guatemalan Labour Minister and former General Secretary of the United Trade Union Confederation of Guatemala. His death was an irreparable loss for the inter-American and international labour movement. In spite of the conventional wisdom that somehow Guatemala had improved due to the 2001 labour law reforms and due to the interruption of the continued review of this country under the United States General System of Trade Preferences, Guatemala's violations of Convention No. 87 had only worsened. The right to strike in the rural sector could be undercut by the power of the executive to proscribe work stoppages which seriously affected the economic activities essential to the nation. Despite the reform of section 255 of the Labour Code, a judge still had the power to despatch the police to guarantee strike replacement as a "precautionary measure". The new section 216 required written proof of the will of 20 or more workers to form a union, thus making for a written disclosure of pro-union activists and imposing a literacy requirement. The Labour Code imposed a potentially prohibitive threshold of 50 per cent plus one of all workers in an entire industry to achieve industrial union recognition. Section 233 increased the requirement from two to four unions to form a federation and from two to four federations to form a confederation. Finally, the new section 379 imposing liability on individual workers for legal damages resulting from a strike or other collective action created a chilling effect. More importantly, de facto violations of Convention No. 87 persisted due to the state of general impunity for the perpetrators of assassinations and death threats directed against Guatemalan trade unionists, including José Pinzon who had fortunately survived and was present today. This was reflected in paragraphs 85-89 of the November 2001 Report of the Committee on Freedom of Association (CFA). The Guatemalan Labour Justice system condoned this general state of impunity with respect to anti-union discrimination as the Committee on Freedom of Association had concluded in paragraph 91 of its November 2001 report, noting the findings of the ILO contacts mission of 2001. The Guatemalan Labour Ministry itself had admitted in November of last year that very few cases of anti-union dismissals had been sanctioned with financial penalties, even fewer of which had been actually paid. He joined with the other members in calling for a special paragraph in this case.

The Worker member of Norway spoke on behalf of the workers in the Nordic group, who were well acquainted with the oppression of Guatemalan workers by their own Government. Trade unions in Guatemala sent to the Nordic national organizations frequent messages of murders, death threats and serious injuries. On paper the situation might look better as issues earlier raised by the Committee of Experts seemed to have been settled through a number of legislative decrees adopted by the Guatemalan Congress, thus bringing the Labour Code more into conformity with Convention No. 87. There were however still provisions which were not in conformity with the Convention and she shared the Committee of Experts' concern that provisions in the Penal Code might still have full effect in spite of the same provisions having been repealed from the Labour Code. This related, for instance, to provisions giving the right to arrest and put on trial anyone publicly attempting a strike or unlawful work stoppage. The Government had just provided assurances on this matter and she looked forward to seeing a change in practice on the part of the Government. Her greatest concern, however, was whether all these new provisions were just lip service. Workers were being threatened, assassinated, and still dismissed for attempting to set up unions, and bargain collectively. The labour courts were ineffective and cases brought before them could drag on for up to five years. The labour inspectors, far from ensuring respect for workers' rights, were often more likely to persuade workers to renounce their rights. In some cases when the workers requested the inspection of the workplace, the inspectors called the employers in advance to warn them of their visit. These days the State itself was guilty of serious violations of labour rights. One hundred seventy workers had been fired in the National Banco Crédito Hipotecario with immediate effect and without consulting the judge in charge of reviewing the institution. In order to avoid communication between the workers and the union, telephone lines and internal electronic mail had been cut and the number of guards had been doubled. In the export processing zones the firms established were notorious for anti-union behaviour and there were no collective agreements for any of the more than 80,000 workers in this sector. Workers who attempted to organize a union were fired immediately. Factories were moved to a new location or given a new name so that workers who wished to organize could be dismissed and new more compliant workers hired for the same jobs. She fully shared the concerns of the Committee of Experts regarding murders, acts of violence and death threats against trade union members as reported by the Committee on Freedom of Association. Through cooperation with organizations like UNSITRAGUA, it had been demonstrated that discrepancies between the newly adopted legislation and the practices of the Government were worse than outsiders were able to comprehend. A country that characterized itself as democratic and had ratified all ILO core Conventions could not allow such actions to take place. This showed lack of respect for the ILO, and contempt towards Guatemalan workers and their fundamental rights. This Committee must urge the Government of Guatemala to bring its practice into conformity with both Convention No. 87 and its own labour legislation. The situation was so serious that she joined the other members in asking that Guatemala be included in a special paragraph.

The Worker member of Brazil recalled that this case had already been discussed by the Committee on eight occasions. The peace accord announced in 1996 had created the hope that Convention No. 87 could finally be fully applied in Guatemala. However, since that date, anti-trade union acts had not ceased to increase. He stated that it must be concluded, in the light of the comments made by the supervisory machinery, that the peace accord did not have any effect in the world of work. The Congress of the Republic of Guatemala had begun a reform of the Labour Code just before the beginning of the 2001 session of the Conference, and had thus modified many sections that were the object of comments made by the Committee of Experts. However, many of the criticized sections remained unchanged, in particular: the imposition of compulsory arbitration (Decree Law Nos. 71-86 and 35-96), the decree maintaining the surveillance service upon the creation of a trade union which could be the source of the interference by the executive authority, the restriction of the participation of foreign workers in the executive committees of trade unions; the requirement of a minimum number of workers for the formation of a trade union, which remained higher than that accepted by the Committee on Freedom of Association; the authority given to the Executive in the registration of trade unions; and the numerical requirements for the creation of federations and confederations. Furthermore, the protection of elected leaders provided for by the amended section 209 of the Labour Code remained insufficient to ensure the application of Article 11 of the Convention. Regarding the possibility of interventions of judicial and executive authorities in the exercise of the right to strike in the essential public services sector (section 243 of the Labour Code), while the amendments introduced appeared to have reduced the scope of this intervention, the Committee of Experts had not specified to what extent the situation had actually changed. The power left to the Executive in this field made it easily conceivable that the police forces would continue to limit the exercise of the right to strike. Moreover, he recalled the frequency with which trade union leaders were threatened, intimidated or detained. The Committee on Freedom of Association had indicated in this regard that the frequent imprisonment of leaders in these circumstances was typical of a restricted situation of freedom of association. Finally, he emphasized, as was done by the direct contacts mission and as was also brought out by the numerous complaints filed to the Committee on Freedom of Association, the slowness with which justical decisions were rendered. In this respect the Committee on Freedom of Association had specified that late justice was a denial of justice. Under these circumstances, the Government should take real action, including measures of judicial reform, so as to ensure the effective application of the rights and principles contained in international Conventions that it had undertaken to respect. The speaker supported the request made to include the case in a special paragraph.

The Worker member of Spain stated that in this case the Committee found itself faced with a typical and frequent situation of a discrepancy between legislation and reality. The legislation reflected in the first paragraphs of the report was due in part to the direct contacts mission headed by the ILO, which in fact had proved to be efficient in changing the legislation, but not the reality. This resulted in a manifest hypocrisy, for legislation that was not reflected in reality was a dead letter. The reality included, in the constant violation of trade union rights on all levels, the infringement of the right to strike and social injustice. Contrary to what had been stated by the Employer members, the speaker affirmed that the right to strike was covered by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and along with the right to bargain collectively, constituted one of the pillars of trade union rights. The systematic violation of the right to strike in Guatemala was due in part to the imposition of compulsory arbitration. In this respect, the speaker demanded that this country be included in a special paragraph.

The Government member of Mexico stated that since the previous session of this Committee, when the Government of Guatemala had been invited to report on the application of the recommendations made by the Committee of Experts, the Government had observed progress in the reform of the Labour Code introduced by the Guatemalan Congress to bring the national legislation in line with Convention No. 87 and, in particular, to comply with the requests that had been formulated by the Committee for a long time. She welcomed that the Experts had mentioned in their report the amendments to the Labour Code which had allowed to adapt internal legislation to the aforementioned instrument. She also noted with interest the commitment of the Government of Guatemala to continue the implementation of this reform and to give workers the necessary means to effectively exercise their labour rights. As in the previous year, the speaker asked that the progress mentioned by the Committee of Experts and confirmed by the direct contacts mission be included in the conclusions of this Committee. She encouraged the Government of Guatemala to maintain its close collaboration with the Office and with the supervisory bodies of the ILO, in the aim of obtaining a true guarantee of the respect of labour rights in the country.

The Worker member of Colombia stated that Guatemala was a country in which 75 per cent of the population was concentrated in the rural area, of which almost 80 per cent lived under the poverty threshold and many died of starvation. Sixty-seven per cent of the population worked in the informal sector. He stated that though it was certain that the Committee of Experts had welcomed the fact that the Government of Guatemala had harmonized its labour legislation with the instruments of the ILO, it was no less certain that in the present day, complex situations preventing the full development of freedom of association in Guatemala still prevailed. Specifically, last year, the Government had expressed its respect to the supervisory bodies of the ILO and had acknowledged the need to improve labour conditions in the country. Despite this, words did not always coincide with facts, which was why Guatemalan workers did not stop asking for assistance from the global trade union movement in the struggle against anti-trade union acts such as the breaking and entering of trade union premises and the detention, disappearance and assassination of trade unionists. The Workers were used to hearing in this forum promises from the Government representatives according to which legislation would be brought into conformity and workers' rights would be protected. Unfortunately, years went by and the situation remained the same. For this reason the Government of Guatemala should take the necessary measures to answer the workers' requests and fully ensure the right to establish organizations, to bargain collectively and to strike. Nowadays, poverty, unemployment and social instability have aggravated, the number of poor and marginalized people has increased and the number of rich people has decreased.

The Government representative, after having listened to the Worker and Employer members, reiterated his previous statement and stressed, more specifically, that his country was about to leave behind an exclusionary political system that had persisted for more than 100 years, and had given rise to the internal armed conflict, which was why there was no easy way to eradicate the culture of confrontation persisting between social partners, on the one hand, and between social partners and the institutions on the other. In respect of what had been put into question, he referred again to the concrete measures already take by the Special Prosecutor constituted in order to punish crimes perpetrated against trade union leaders, to the creation of the Sanctions Unit responsible for ensuring workers' rights and to the labour law reform. He added that in this effort, his Government had invited the Special Representative of the Secretary-General of the United Nations for the Human Rights Defenders and had undertaken a policy of human rights reparation under which the State had spent a huge amount in order to compensate numerous workers of the Ministry of Culture who had been unfairly dismissed. The speaker again stressed on social justice and the need to rely on ILO technical assistance in order to implement international Conventions. Finally, he referred to: the amendments that were still pending and had been requested by the Committee of Experts, concerning the requirement to be of Guatemalan nationality in order to participate in the creation of an executive committee of a trade union and the obligation to be a worker of an enterprise or of the concrete economic activity to be eligible as a trade union leader; as well as the doubts expressed concerning the enforcement of section 390, paragraph 2, of the Penal Code. He stated that his Government had committed itself to submit these points to a tripartite committee, by virtue of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

The Worker members stated that they could not but observe the existence of serious problems related to the application of Convention No. 87 in Guatemala and the criminalization of trade union activities. The infringements noted concerned the application of the Convention in law as well as in practice. Urgent measures had to be taken. Regarding the legislation, the Government must take steps to amend without delay the provisions violating respective Articles of Convention No. 87 and the right to strike as recognized by the Committee on Freedom of Association; to provide at the earliest possible date the information requested by the Committee of Experts concerning the provisions of the Penal Code imposing compulsory arbitration and a penalty of imprisonment in case of paralysing or disrupting the running of enterprises which contributed to the economic development of the country. Regarding the application of the Convention in practice, the Government must prove a true will to protect trade union leaders and their activities, by ensuring a climate of peace and security, as well as the existence of an impartial, rapid and efficient judicial system, and reinforcing social dialogue. Finally, the Government must lift the impunity which protected the perpetrators of anti-trade unions acts, which included threats against the physical integrity of persons and manslaughter of trade union leaders. Taking into account this difficult and even tragic situation, as well as the absence of real improvements, the Worker members requested that this case be included in a special paragraph and that the Employer members consider such a possibility.

The Employer members stated that this case had two sides: on the one hand, the Committee of Experts had noted considerable progress in its comment under the Convention and in the General Report, and on the other hand, there remained action to be taken by the Government in order to fully comply with the Convention. With regard to the progress achieved, the statements of the Worker members were somewhat strange. The Worker members usually praised the Committee of Experts for their knowledge, wisdom and objectivity. During this discussion, the Workers had adopted a different attitude. The Employer members agreed, however, that the continuing state interference with trade union affairs was not acceptable. The Government had to take the necessary measures and the Employer members noted the Government's preparedness to undertake the necessary amendments to the legislation. They said that legislative action in relation to the right to strike was not needed from their point of view. The Government, however, had to ensure the application of the Convention in law and practice. They recalled that the signed peace agreement could not immediately bring to an end a civil war that had lasted over decades. Moreover, they believed that not every problem could be solved by the adoption of legislation. A trade union-friendly culture had to be established, which would take time. In conclusion, the Employer members disagreed with the Worker members' request to place the Conference Committee's conclusion in a special paragraph. In the light of the legislative amendments which marked a considerable progress, it went against the established tradition of this Committee to include in a special paragraph, a country which had previously been considered as a case of progress by the Committee of Experts.

The Worker members deplored that there could not be a consensus in favour of the inclusion of this case in a special paragraph of the Committee's report.

The Committee took note of the statement made by the Government representative and the discussion which took place thereafter. The Committee welcomed the positive measures taken during and shortly after the ILO direct contacts mission which took place in the country. The legislative decrees adopted on this occasion had allowed to eliminate some of the obstacles to the application of the Convention which had been raised by the Committee of Experts over many years. Nevertheless, the Committee observed that difficulties subsisted in respect of the eligibility requirements for trade union officers. It requested the Government to rapidly take measures to lift these obstacles to the application of the right of trade unions to elect their representatives freely, recognized by Article 3 of the Convention. The Committee also noted with concern that new cases had been submitted to the Committee on Freedom of Association, both by workers' and employers' organizations. These cases revealed significant difficulties for workers' and employers' organizations in the practical exercise of their activities, due in particular to the acts of violence committed against their members. Recalling that the respect of civil liberties was essential for the exercise of trade union rights, the Committee expressed the firm hope that the Government would take the necessary measures, in close collaboration with the social partners so that workers' and employers' organizations could exercise their activities in a climate free from violence and that the Convention could be fully applied both in law and in practice. The Committee requested the Government to provide detailed information in its next report for examination by the Committee of Experts.

The Worker members deplored that there could not be a consensus in favour of the inclusion of this case in a special paragraph of the Committee's report.

Individual Case (CAS) - Discussion: 2001, Publication: 89th ILC session (2001)

The Government supplied the following information:

On 25 April and 14 May 2001 the Congress of the Republic approved two legislative Decrees which implement the requests of the Committee of Experts concerning the application of Convention No. 87.

The Office prepared the following summary concerning these Decrees:

-- ending of the supervision of trade union activities by the executive (former section 211 of the Code);

-- ending the requirement that members of the trade union executive committee have no criminal record and are able to read and write (former section 220 and 223);

-- ending the requirement of obtaining a two-thirds majority of the members of a trade union to be able to call a strike (former section 222); now the requirement is for more than half of the quorum of the assembly;

-- ending the requirement of obtaining a two-thirds majority of the worker of the enterprise for a strike to be legal (former section 241); the requirement is now to obtain more than half of the workers of the enterprise;

-- repealing the prohibition on strikes or suspension of work by agricultural workers during harvests (former section 243a) and by workers of enterprises or services whose interruption would, in the opinion of the Government, seriously affect the national economy (section 243). The President of the Republic can now only suspend a strike when it seriously affects essential public services and activities (new final paragraph of section 243);

-- repealing the provision requiring detention and judgement of those who publicly incite an illegal strike or work stoppage (former section 257);

-- ending the obligation for the courts to call on the national police to ensure continuity of work in the event of an unlawful strike (former section 255); henceforth, judges "could" order and carry out preventive measures in order to guarantee the continuity of activities and the right to work of persons who so wish;

-- facilitating and strengthening the procedures and penalties for violation of labour standards (intervention of the labour inspection in the process; setting of fines on a sliding scale based on minimum wage scales and the seriousness of the violation).

In addition, before the Conference Committee, a Government representative, the Minister of Labour and Social Security, stated that his Government was present before the Committee today because of its conviction that it was necessary to respect the ILO supervisory bodies and because of the Government's desire to improve its labour laws and their application. In this regard, he noted that the Guatemalan Labour Code had been in force since 1947. As a result of the overthrow of the Second Revolutionary Government in 1954, the Code's enforcement had been interrupted and the rights of workers had begun to be violated. Indeed, enforcement continued to be uncertain. In this context, the Government agreed with the ILO's position and stood ready to correct all incompatibilities with the international standards which Guatemala had voluntarily accepted, including Convention No. 87, ratified in 1952.

The speaker was happy to inform the Committee that his Government had fulfilled most of the commitments that it had undertaken during the 88th Session of the International Labour Conference in June 2000. He added that he would provide a detailed explanation to the Committee in this regard, but that he considered that it would have been desirable to wait for the Committee of Experts to analyse the legal amendments recently adopted as well as to await the report of the direct contacts mission that had visited the country in April 2001.

He noted that two amendments to the Labour Code had been adopted in order to bring the Code into conformity with Convention No. 87. The first was approved by the Legislative Congress on 25 April and the second was approved on 14 May. Both amendments would enter into force on 1 July 2001. These amendments took the ILO's observations into account, repealing and amending certain sections of the law. He assured the Committee that Guatemala's commitments had been fulfilled, with the exception of the issue of the right to strike for workers in the public sector, a pending question which would subsequently be considered in a comprehensive reform of the Civil Service Law, which established the labour rights of workers of the executive branch.

He also wished to provide clarifications with regard to the tripartite consultations conducted in the process of amending the Labour Code. He wished to inform the Committee that these consultations had been satisfactorily completed in that the Congress had permitted employers and workers to make a joint proposal on the amendments which they wished to introduce in the law and that the proposal agreed to by the workers and employers had been approved by Congress in its entirety. The Congress thereby demonstrated its respect for democracy and tripartism. Nevertheless, the agreement reached by workers and employers was not sufficient, as these groups had achieved agreement on only six of the 13 points raised by the ILO. As a result, the amendment was not satisfactory to either the Government or the ILO, as the ILO Office itself had indicated. It was therefore necessary to carry out a second amendment without the participation of workers and employers, as these two groups had publicly stated that they would not be able to reach a consensus on the subject matter. The legislative branch therefore took over responsibility for this issue and it adopted the second amendment in accordance with the recommendations of the ILO.

The speaker pointed out that the second amendment also included other changes in addition to those recommended by the ILO and to those deriving from the peace agreements. These additional changes provided better protection of workers' rights and improved the ability of the Ministry of Labour in preventing the violation of workers' rights and in ensuring that these rights could not be violated with impunity. In this manner, the Congress was carrying out its mandate to legislate for the benefit of the people.

In respect of this case, the speaker noted that his Government considered it necessary to carry out a broader revision of the labour laws, to regulate and update the recognized rights of workers and to bring the legislation into conformity with the ILO Conventions and the peace agreements. To that end, a draft code of labour procedure had been prepared, which sought to ensure the rapid processing of labour cases and the effective enforcement of sentences imposed in such cases, since otherwise workers' rights would continue to be violated with impunity. Copies of this new draft had been sent to workers' and employers' organizations, the Supreme Court and specialized bodies such as the National Lawyers' Association, the United Nations Mission in Guatemala (MINUGUA) and the ILO Office, with the aim of receiving their comments, corrections and suggestions.

In addition, on 8 June 2001, a meeting had been held with trade unions and organizations representing farm workers, disabled workers and women workers with a view to reviewing the substance of the Labour Code to incorporate the opinions of these groups. Employers' organizations had also been invited to attend.

With regard to the Committee of Experts' comments on the exercise of freedom of association rights and the murders of various trade union leaders, the speaker informed the Committee that, when the direct contacts mission arrived in Guatemala in April 2001, his Government had provided the team with the necessary facilities and cooperation to enable it to carry out its tasks without hindrance. This demonstrated the Government's willingness to cooperate with the ILO and its supervisory bodies because, even prior to receiving the official notice from the ILO Office regarding the sending of the direct contacts mission, the Government had taken the initiative of inviting the mission and asking it to address other issues in addition to the specific matters with which it had been charged. The Government took this action so that it could take advantage of the experience of the team members and their presence in Guatemala, and ascertain the opinion of the ILO regarding the labour law amendments which were then pending in Congress.

The direct contacts mission would submit its report to the Committee on Freedom of Association in November. However, he wished to inform the Committee that a special inspectorate under the Public Ministry had begun operations on Friday, 8 June, and that this special inspectorate would investigate crimes committed against trade union officials or members as a result of their trade union activities. This special inspectorate had been established in response to the recommendation made by member of the direct contacts mission. In other words, prior to receiving the mission's report, his Government was already taking measures to punish crimes committed against trade union members.

In conclusion, he was pleased to provide the Committee with this information so that it could highlight and note as a positive element that Guatemala had fulfilled its commitment to amend the Labour Code and that the direct contacts mission had been carried out with the Government's full cooperation, which indicated Guatemala's respect for the ILO, its procedures, and the work of its supervisory bodies. He also informed the Committee that, for the first time in the history of Guatemala, an individual accused of having murdered a trade union official had been sentenced to 25 years in prison. He also informed the Committee that, with regard to the case of the SITRABI trade union and the Bandegua company, criminal actions were brought against those persons implicated in the crimes committed against SITRABI trade union officials, and 24 of the 26 defendants were convicted and sentenced to two and a half years in prison. This case had been appealed by the Public Ministry on the grounds that the sentence imposed was insufficient, a fact which demonstrated the Government's determination to ensure that such crimes did not go unpunished. Other cases were being investigated and satisfactory results were expected which would permit justice to be served. The Government's message was clear. It would not permit violent acts against trade union members to be committed with impunity.

The speaker thanked the Committee, noting that its persistent efforts in the case of Guatemala had contributed to overcoming the problems noted by the Committee of Experts and stating that Guatemala had now brought its legislation into conformity with Convention No. 87, an instrument ratified almost 50 years ago. He respectfully requested that the Committee's conclusions take note with satisfaction of the progress achieved since, despite the fact that the Committee of Experts had not yet analysed the amendments adopted, the written communication submitted demonstrated that a number of provisions previously criticized had been completely repealed.

The Worker members recalled that the Conference Committee had been examining the case of Guatemala since the 1980s and that the ILO was constantly following developments relating to freedom of association in the country. They also recalled that a direct contacts mission had visited Guatemala since the last session of the Conference.

In its observation this year, the Committee of Experts once again recalled the various problems which arose concerning the violation of trade union rights, such as the multiple restrictions on the right to strike, the limitations on the right to strike and the sanctions imposed in this respect, as well as the surveillance of trade union activities. In the written communication submitted and in his statement, the Government representative had provided the Committee with a range of information concerning the adoption of legislative decrees by the Congress on 25 April and 14 May 2001. In that connection, the Worker members regretted that, despite the dialogue initiated with the social partners with a view to agreeing upon reforms, the consultation process had not been productive and the reforms proposed to Congress had not been reached by consensus or through any prior agreement with the social partners. On the substance of the case, they pointed out that the decrees adopted responded to many of the points which had been raised by the Committee of Experts over many years. However, before taking up a position, it would be necessary to let the Committee of Experts examine all the amended texts in detail.

Such prudence was particularly necessary since a number of important points had not been addressed satisfactorily, such as: confining the holding of trade union office to nationals of Guatemala; the imposition of quotas in relation to the decisions taken in certain areas by trade union activity, and particularly strike action; the possibility for the President of the Republic to suspend trade union activities, and particularly strikes; and the direct intervention of the judicial authorities in labour disputes. They emphasized that the Committee of Experts in its observation had recalled that the imposition of compulsory arbitration in non-essential public services and the prohibition of solidarity strikes by unions were also violations of the Convention and had noted that the new decrees did not appear to address this particular point. They indicated that, while welcoming the progress achieved, they regretted the absence of any real tripartite dialogue and reserved their position on the merits until the Committee of Experts had commented on all the amended provisions of the Labour Code. In its introductory remarks, the Committee of Experts had noted with concern the conclusions of the Committee on Freedom of Association in case No. 1970 following a complaint made by the General Confederation of Workers of Guatemala, the Latin American Central of Workers, the World Confederation of Labour and the International Confederation of Free Trade Unions. The allegations in this complaint were multiple and included murders, physical assaults, death threats, raids on the homes and attempted kidnappings of trade union leaders and activists, anti-union dismissals, obstruction of collective bargaining and the non-certification of collective labour agreements. This sinister list illustrated the particularly serious situation with regard to the exercise in practice of the most elementary trade union rights. Furthermore, impunity was guaranteed too often in the identification and punishment of those guilty of such criminal acts. For this reason, the Worker members once again drew the Government's attention, as the Committee of Experts and the Governing Body had done, to the fact that "freedom of association can only be exercised in conditions in which fundamental human rights, and particularly those relating to human life and personal safety, are fully respected and guaranteed" with particular reference to the right to life and that "in the event of assaults on the physical or moral integrity of individuals (...) an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts".

The Employer members, referring to the statement made by the Worker members, recalled that the Committee of Experts had been making comments on this case since 1980 and that it had been examined by the Conference Committee on a number of occasions. In its comments, the Committee of Experts had raised a number of general issues, such as the need for a peaceful environment and the importance of the rule of law and order and respect for fundamental human rights. While these matters were of importance for every State and the well-being of its citizens, they did not constitute a requirement under the Convention, even though it was unlikely that freedom of association could be achieved in their absence. The Employer members pointed out that, however important they were, it was not within the ILO's competence to examine these issues.

The comments of the Committee of Experts could be divided into two categories. The first concerned the interference of the State in the internal affairs of trade unions, while the second related to the right to strike. In this respect, the Employer members recalled once again that the right to strike was not regulated by the Convention. Another issue covered by the Committee of Experts concerned arbitration. In the view of the Employer members, a clear distinction needed to be made between compulsory arbitration and the establishment of an arbitration procedure.

With reference to the information provided by the Committee of Experts that the President of the Republic had transmitted to Congress a Bill to amend or repeal some of the provisions on which the Committee of Experts had been commenting, the Government representative had indicated that the Bill had been adopted by the Congress in the meantime. The new Act contained amendments relating to a number of the points raised by the Committee of Experts. These amendments concerned not only interference by the State in the internal affairs of trade unions, but also on the right to strike. They agreed with the Worker members that the new Act would have to be examined by the Committee of Experts.

Turning to the attempt which had been made by the Government to establish a tripartite consultation mechanism, the Employer members noted that, as in the past, the outcome had not been satisfactory. Although the reasons for the failure were not clear, one reason might be the long-term civil-war like conditions in the country. Although peace had been re-established, its effects still needed to be felt in practice. Moreover, although tripartite consultation was always welcome, in the final analysis it was the responsibility of the Government to take the necessary measures to bring the national legislation into conformity with the Convention. Even though the situation had changed and new legislation had been adopted, past experience showed that it was unlikely that this would be the last time that the case of Guatemala was examined by the Conference Committee. The Government had taken a number of first steps which were in the right direction. The Employer members emphasized that it was within the Government's discretion as to whether all the issues raised by the Committee of Experts would require amendments to the national legislation. In their view, there was no need for legislative measures to be taken with regard to the right to strike, since the right to strike was not covered by the Convention.

The Worker member of Guatemala indicated that the issue of the criminalization of socio-economic disputes was particularly interesting in the context of the free exercise of trade union rights, since utilizing the threat of criminal prosecution to resolve labour disputes constituted a method of restricting workers' right to organize.

He pointed out two cases in Guatemala that exemplified the use of penal action in the field of labour, as well as the violation of the right to freedom of association. The criminalization of labour disputes constituted a violent anti-union practice, as was shown, for example, by the harassment suffered by the members of the Union of Banana Plantation Workers of Izabal (SITRABI), of the Bandegua Enterprise (a subsidiary of the Del Monte multinational corporation) which involved the use of firearms, theft, threats, illegal detention of trade union officials and members, raids and other crimes, with the tacit consent of the Ministry of the Interior and the Public Ministry. The same types of incidents had taken place in other cases. In the case of SITRABI, criminal activity was used with the clear objective of destroying an enterprise-based trade union and restricting through the use of threats the free exercise of rights to freedom of association guaranteed by the Guatemalan Constitution, the Labour Code, the peace agreements signed by the Government, the guerrilla leaders and the Guatemalan military, as well as international Conventions ratified by Guatemala. He said that the SITRABI case was to be deplored by all international and national trade unions and had been closely followed by the United Nations verification mission (MINUGUA), the Office of the High Commissioner for Human Rights and the ILO. In fact, MINUGUA had expressed its concern at the practice of bringing criminal complaints against trade union leaders for events occurring allegedly in the context of labour disputes, citing the SITRABI case as well as the cases of the Alabama and Arizona ranches. In the Arizona case, the trade union adviser for the Guatemalan Workers' Trade Union (UNSITRAGUA), Mr. Jorge Estrada, had been arrested on the grounds that he had made threats and caused damage.

The second case examined involved the Union of Workers in the Judiciary (STOJ) and the Supreme Court (CSJ). In that case, the management's refusal to negotiate a new collective agreement on working conditions had led to the filing of a complaint by the CSJ against the trade union officials for work stoppage. This problem was compounded by the bias of the body charged with imparting justice, before which the trade union officials had to appear. Some years later, this high-level body had handled a new case brought against the trade union members in which no just cause had been shown for their dismissal. In addition, the CSJ had failed to comply with the Constitutional Court's order to grant the workers protection.

The slow action of the administrative and judicial system could be seen in the context of the above disputes, as well as in other cases. The use of criminal prosecution as a means of resolving these disputes was only one of the ways in which the state agencies had failed to follow national law and it was clear that freedom of association was impaired by these criminal actions, despite the establishment of a legal framework which was relatively favourable to freedom of association.

With regard to the issue of freedom of association, in its report on labour rights, MINUGUA had recommended that the legislation should be amended to bring it into conformity with the principles established by Conventions Nos. 87 and 98, thereby broadening the protection of the right to freedom of association, particularly at times when the collective interest was more fragile. Similarly, MINUGUA had called for all components of the justice system to interpret in a broad, progressive and consistent manner the legal provisions providing for the effective protection of the right to freedom of association. He stressed that Guatemala was one of those countries that the Committee of Experts had asked to modify its domestic legislation with regard to the Convention, as the legislation posed an obstacle to the real exercise and protection of trade union rights. The recommendations of the Committee of Experts had been repeated year after year, including in their report for the year 2001.

He added that trade union representatives had met with various government representatives to ask them to draft legislation in accordance with the Committee of Experts' recommendations. However, the result had been the amendments to the provisions of the Labour Code that restricted the right to strike in harvest time, by granting the President the power to suspend the right to strike through the Council of Ministers if deemed appropriate. He stressed that the right to strike of public employees had not even been taken into consideration, despite the recommendations made by the Committee of Experts, nor had Decree No. 35-96 been repealed.

He added that it was necessary to break the existing cycle of impunity, as demonstrated by the example of the SITRABI trade union, whose leaders had been forced to flee the country to protect their lives and those of their families. Speaking on behalf of the trade unions and farm workers' organizations, he called for amendments in conformity with the labour rights. He also stressed that these amendments should be in conformity with the right to freedom of association, the right to strike and the right to collective bargaining.

The Employer member of Guatemala stated that, as the Minister of Labour of Guatemala had indicated, two recent Decrees of the Congress of the Republic were published in the Official Gazette. These have been introduced into the Labour Code, changes which, among other things, appeared to bring the national legislation into conformity with Convention No. 87. Taking into account the extent and complexity of these changes as well as that they would not come into force until 1 July 2002, it appeared that it would be highly desirable that this Committee begin its examination after considering what the Experts might say in this respect in their next report. What the Committee should examine instead, in order to have direct relation to the promulgated legal reforms and in relation to what had been already indicated and duly noted in front of the Committee in its meeting in 2000, was the practice by the current Government of the Republic of Guatemala to ignore the Tripartite Committee of International Labour Matters, which on may occasions had expressed its desire that the Congress of the Republic consult with it prior to adopting labour laws, in the spirit of the fundamental principle of this Organization, of tripartism. Similarly to what happened last year, the draft sent by an Executive Body to the Congress of the Republic was not discussed and was not the result of consensus of the social partners. In the present case, as distinct from 2000, not even that of the workers. This was the reason why the workers and the employers jointly addressed to the Congress of the Republic in order to ask it to correct the mistake and to provide the employers an opportunity to express their opinion. Despite the obstinate resistance of an Executive Body, in the person of Deputy Minister of Labour, the Congress agreed to the request, submitting the proposed changes to the consideration of both parties of the productive sector. The aforementioned permitted to open the dialogue, the result of which was the first of the Legislative Decrees previously mentioned, which received a bilateral consensus of workers and employers. Without appreciating an important effort made by the productive sector and yielding to other types of pressure, the Executive Body insisted on its original proposal which was not duly consulted with the workers and employers. This resulted in the adoption of the second of the Decrees in question. The aforesaid indicated the absence of inclination towards dialogue which characterized the current Government of the Republic, which, instead of striving towards reconciliation, insisted on division and opposition. The documentary evidence of the above could be found in the archives of this Organization. It was sufficient to read the proceedings of the Tripartite Committee of International Labour Matters in order to establish the resistance of the Minister to the discussion of the new Labour Procedural Code. There were also the proceedings which reflected the healthy tripartite practice used by this Committee until the current authorities came to power. The return to the authoritarian power had already caused severe damage to the process of social dialogue which was implemented from the mid-1990s and which had already brought concrete and positive results, such as the changes to the Labour Code agreed within the Tripartite Committee with the aim of complying with the Peace Agreements. In summary, pretending to comply with what the Experts had indicated in respect of Convention No. 87, the Government of the Republic of Guatemala violated, once more, another Convention regarding this field, Convention No. 144 relating to tripartite consultations.

The Worker member of the United States noted that although there was a tendency in this Committee to argue that Guatemala had made serious advances due to labour law reform and the interruption of the continued review of the situation in Guatemala by the United States in the context of the generalized system of preferences, this country had taken too many steps backwards. The speaker commended the Committee of Experts for reporting on the violation of the physical integrity of Guatemalan trade unionists and demonstrating the direct relevance of this question to the Convention. The recent reforms of the Labour Code mentioned in the report of the Committee of Experts were totally contradicted by other provisions in the law. The granting of the right to strike during harvest in the rural sector could be undercut by another provision of section 243 of the Labour Code, which gave the executive the power to declare illegal any strike which could adversely affect fundamental economic activities. Moreover, section 243 continued to proscribe strikes in the transport, health and energy sectors. The Guatemalan nationality requirement for trade union leadership persisted in section 220. The abolition of the Labour Code provisions concerning detention and judgement for unlawful strikes was contradicted by section 390 of the Penal Code concerning strikes which could be interpreted as paralysing or disrupting the functioning of enterprises which contributed to the economic development of the country. Section 255 of the Labour Code still gave judges the power to allow the police to perform services as a "precautionary measure" pursuant to an ex officio decision or a petition by the employer. The new section 216 which required signed and written proof of the creation of a union by at least 20 workers required a written disclosure of the pro-union activists and imposed a new literacy requirement. The law maintained the threshold requirement of 50 per cent plus one of all workers in an entire industry to achieve industrial union recognition. This requirement was prohibitive for industries with thousands of workers such as the agricultural sector. The new section 233 increased the requirement from two to four unions necessary to form a federation and from two to four federations to form a confederation. Finally, the new section 379 imposing individual liability on workers for damages resulting from a strike or other collective action created a chilling effect. In conclusion, the facts contradicted conventional wisdom which called for a more lenient approach towards Guatemala.

The Worker member of Colombia said that the Committee was once again engaged in analysing the difficult situation faced by the workers and people of Guatemala due to the climate of intolerance surrounding the trade union movement and to labour legislation which was not into conformity with the ILO Conventions. He recalled that a direct contacts mission had recently visited Guatemala as a result of the violations of the Convention. He indicated that trade unionists had been murdered, largely with impunity. He therefore requested the Government of Guatemala to provide information on the status of the investigation into the murder of Mr. Osvaldo Monzón Lima and other murdered trade unionists so as to bring an end to the climate of impunity to which he had referred. He recalled that the Government member had undertaken the previous year that the reforms of the Labour Code would be achieved through consultation and consensus. However, according to information that had been received from the workers' confederations in Guatemala, that had not happened and the reforms had been imposed. That created a crisis of confidence concerning the commitments made. Although he recognized the progress that had been made, he nevertheless wondered when the reforms would be completed. Finally, while he respected the autonomy of Guatemala, he said that it was unjust that the problems of poverty and social exclusion should be compounded by violations of fundamental rights.

The Worker member of Norway stated that there were indications that some of the most unacceptable violations of Convention No. 87 in Guatemalan law had been eliminated in the recent revision of the Labour Code. However, many of the agreements negotiated between the trade unions, the Government and the employers' representatives after the ILO direct contacts mission in April 2001 had not been included in the Labour Code. Although Guatemala ratified Convention No. 87 as early as 1952, it was still not fully implemented. This explained why trade unionists had been killed and persecuted through the years for defending workers' rights. By not having brought their legal framework into conformity with Convention No. 87 and by not assuring the application of existing laws, the Guatemalan Government in fact tolerated and contributed to the violations of trade union rights. Assassinations of trade union leaders went unpunished. Death threats against union activists were so common that they received no attention in the judicial system. Recent examples included the following union leaders: Maria de Lourdes in the plantation sector; workers in the municipality of Tecun Uman; Juan Pacheco from the public sector and Mario Sepulveda from the railway union. The last had been forced into exile. National authorities seemed to be paralysed. There were, for instance, laws stipulating minimum benefits for maquila workers, but little was done when companies left the country and left workers without pay. On the few occasions when the courts demanded justice, their orders were simply ignored. In the case of the SITRABI union, the persons who forced union leaders to resign and threatened both the leaders and their families were actually brought to trial. However, the sentences they received were extremely light. The union leaders from SITRABI were forced to live in exile. The reforms of the Guatemalan Labour Code had brought about some positive changes, but they were far from enough to prevent severe violations of labour rights. Moreover, the laws already in force were not being respected and applied. Until that happened workers would be persecuted and denied their basic human rights. This Committee, as well as trade unions in all parts of the world, would continue to support the workers of Guatemala until trade union rights were fully implemented.

The Worker member of Uruguay maintained that although there might have been an effort on the part of the Guatemalan Government, violations of Convention No. 87 still persisted. He said that he thought he had seen a mistake in the records of the previous year when they said that the Government was committed to developing trade unionism, instead of saying that it was going to develop the instruments and the means necessary to strengthen trade unionism. But there was no mistake since, indeed, disregarding the principle of tripartism, the Government had not consulted the workers when drawing up legislative reforms. He said that the power conferred on the President to suspend a strike was an interference in the exercise of that right. He asserted that regulating the right to strike was a restriction on the right to strike, that was to say the use by workers of that means of defence. The employers had other means of defence such as closing their company and moving to another country, but for workers the right to strike was a fundamental element of Convention No. 87.

The Worker member of Brazil recalled that when the Peace Agreement was concluded in Guatemala in 1996, it had given rise to expectations that Convention No. 87 would be applied in full. However, there had been an increase in anti-trade union acts, as noted by the Committee of Experts. From an analysis of the observations in the reports of the 1980s and 1990s, it could easily be concluded that the Peace Agreement did not extend to the world of work. The victims were the murdered and disappeared trade unionists who added to the long list of cases before the Committee on Freedom of Association. He recalled that the Committee of Experts had underlined the failure to respect trade union freedom and fundamental rights. He said that just before the start of the Conference, the Congress of the Republic of Guatemala had published a reform of the Labour Code which amended the articles repeatedly singled out by the Committee of Experts. Those reforms had still not been examined by the Committee of Experts. The reforms went further than the Labour Code. Nevertheless, it seemed that a number of the new provisions were not in conformity with Convention No. 87 and could be prejudicial to workers. The reforms maintained an advisory service for the creation of trade unions which could perpetuate the interest of the Government in influencing new trade unions. The restriction on participation by foreign workers on trade union executive committees was also retained. Furthermore, the provisions on compulsory arbitration remained in force without amendment. The judiciary, ex officio, or at the request of one of the parties to a dispute, had the power to ban "preventatively" an illegal strike. Strikes were subject to so many legal requirements that it was certainly highly likely that they would always be considered illegal. A minimum number of workers to create a trade union higher than the standard established by the Committee on Freedom of Association was required. The authority given to the Government relating to the registration of trade unions and the requirements for forming federations and confederations were also contrary to the principle of trade union freedom. Finally, he highlighted that, concerning strikes in the essential services, excessive and arbitrary interference by the judiciary and the Government was permitted, firstly, because it decided the minimum activities that must be maintained without setting out any criteria and, secondly, because it conferred on the President of the Republic the power to suspend a strike when he considered that it would seriously affect an essential service.

The Government member of Mexico indicated that she had listened with great interest to the information relative to the Labour Code amendments adopted by the Congress of Guatemala in order to bring the Labour Code into conformity with the provisions of Convention No. 87, and especially to meet the requests formulated by the Committee of Experts for a number of years. She acknowledged that progress had been made in adapting domestic legislation, and highlighted the engagement of the Government delegation of Guatemala to proceed with a more extensive revision of labour legislation. She indicated that those elements should be reflected in the conclusions of the Committee, and expressed her belief that the results of the direct contacts mission would confirm the progress made.

The Government member of the United States pointed out that her Government had a keen interest in workers' rights - particularly freedom of association in Guatemala. Her Government had urged the Guatemalan Government to seek ILO technical assistance and had provided financial support for certain activities with a view to bringing the Labour Code into full compliance with Convention No. 87, ensuring implementation of the Code in practice, and bringing about an end to the violence against Guatemalan workers and their representatives. The speaker welcomed the significant amendments to the Labour Code that were recently approved by the Guatemalan Congress. She appreciated the efforts and goodwill demonstrated by the Government throughout the process. Now she looked forward to full implementation of these amendments. Under the auspices of the US trade benefits programme, her Government would continue to follow developments closely. Therefore she urged the Government to continue its work in cooperation with the ILO in order to ensure that law and practice fully complied with Convention No. 87.

The Government member of Argentina indicated that she had read carefully the written information submitted by the Government, which contained a summary of recently adopted legislative decrees, in the light of the observations made by the Committee of Experts. She considered that those texts answered practically all the observations of the Committee of Experts. She said that only one subject would remain pending, concerning the right to strike in the public sector. She expressed the hope that the Committee's conclusions would reflect the view that those legislative measures answered and satisfied almost all the observations levelled against the Government. She recalled that the Committee's conclusions were one of the most important factors in encouraging cooperation and compliance by governments which had the political will to improve their situation and the honest desire to fulfil their commitments, as, in her view, was the case of Guatemala. That would no doubt encourage the Government to overcome any remaining difficulties.

The Government representative, replying to the interventions in the debate, reiterated that the two legislative decrees adopted by the Congress and summarized in the written information submitted to the Committee, clearly showed positive progress. Firstly, the decrees directly repealed a considerable number of provisions criticized by the experts and, secondly, amended other provisions. The latter were not subject to consideration at that time since it was up to the Committee of Experts to give its opinion on them. As for the cases of violence mentioned by the Committee of Experts, he said that those had mainly occurred during the 36 years of war and the 50 years of dictatorship under which the country had suffered. The subject had been investigated by the direct contacts mission and its report would have to be awaited in order to analyse it. In any case, the authorities had already begun to comply with the recommendations of the mission and a monitoring unit dealing specifically with acts of violence against trade unionists was already operational in the Public Prosecutor's Office. He emphasized that the discussion had shown up contradictions concerning the role of tripartism in legal reform. He pointed out that the first legislative decree of the Congress reproduced an agreement between the CACIF (an employers' organization) and the UGT-UASP (representing the CGTG and UNSITRAGUA) and that was incontrovertible evidence of tripartism. The second legislative decree of the Congress reflected the fact that, as stated by the Employer members, tripartism did not replace the responsibility of the State. The Congress had adopted that decree when the employers and workers could not agree on a solution to the remaining problems highlighted by the ILO and its organs concerning Conventions ratified by the State. The Congress therefore adopted the second decree in the context of the ILO's requirements and the Peace Agreements. One of the objectives of that decree was specifically to put an end to the impunity of the violations of workers' rights. Moreover, it was all very well for some Guatemalan speakers to talk of tripartism in the terms that they had when, at the same time, despite the fact that their organizations had been invited, they had not participated in the discussions on the draft Labour Procedures Code intended to end the delays in trials and sentences not carried out, nor had they attended meetings on the revision of the Substantive Labour Code. Those omissions were documented. Thus, in the draft first reform of the Labour Code (January 2000), which had the agreement of the workers' sector, the employers' sector had walked out. Faced with such a situation, the Government was under an obligation to fulfil its responsibilities to the worker population and to the ILO and could not accept that one party should tell it: "do what we tell you or do nothing." The speaker reiterated that in any legislative reform it would receive and examine the opinions of the ILO and all those who wished to assist because a combination of ideas and help was best. Furthermore, he considered that the discussion of the case should have taken place after the opinion of the Committee of Experts and the report of the direct contacts mission was known. Finally, he requested that the legal texts adopted and the efforts made by the Government concerning the application of the Convention should be mentioned in the conclusions.

The Worker members expressed their concern at the deterioration in the social climate and the criminalization of social conflict. They also expressed their disquiet at the violence exercised with impunity against trade union officials. Whilst noting the changes in the legislation, the Worker members recalled that many provisions were still not in conformity with the Convention. Under those circumstances, the report of the direct contacts mission would be useful in evaluating the situation. The written information submitted by the Government did not answer all the questions raised by the Committee of Experts. The Committee should examine the information in the light of the actual situation, on the one hand, and the provisions of the Convention, on the other, before, if necessary, discussing the case again.

The Employer members stated that both Employer and Worker members were dissatisfied with the situation in Guatemala although it was not clear whether their dissatisfaction was based on the same grounds. A number of issues had not been clarified by the debate in this Committee. The undeniable facts were that for many years there had been considerable discrepancies between national legislation and the Convention. Many of the discrepancies appeared to have been removed by the new amendments. However, it was for the Committee of Experts to examine these amendments in detail to ascertain whether there was compliance with the Convention.

The Committee took note of the oral and written information supplied by the Government member and the subsequent discussion. At its previous meeting, the Committee had emphasized its concern that for many years the Committee of Experts and the present Committee had noted serious discrepancies between the legislation and national practice, on the one hand, and the Convention, on the other, in various ways involving interference by the public authorities in the activities and internal affairs of trade unions, and restrictions on their right to elect freely their officers. The Committee noted with interest that there had recently been a direct contacts mission which had addressed those legislative issues in particular. The Committee noted the statements of the Government to the effect that the Congress of the Republic had adopted two legislative decrees during and after the mission which repealed or amended the majority of the legal provisions which had been referred to the Committee of Experts. The Committee observed that it was up to the Committee of Experts to assess the exact extent of those reforms. However, the Committee noted with concern that the Committee on Freedom of Association had examined several serious cases of violation of trade union freedom, in particular involving threats and acts of violence. The Committee underlined in that respect the importance of fully observing the civil liberties essential for full application of the Convention. The Committee urged the Government to take steps to promote and conduct full and genuine tripartite discussions in the country so that the outstanding issues might be resolved in a manner satisfactory to all the parties. The Committee also requested the Government to take all measures necessary to bring national practice into full conformity with the provisions and requirements of the Convention and expressed the firm hope that in the very near future it would be in a position to note further improvements in the application of the Convention, both in the legislation and in practice. The Committee requested the Government to provide it with detailed information in its next report to allow a new evaluation of the situation by the Committee of Experts.

Individual Case (CAS) - Discussion: 2000, Publication: 88th ILC session (2000)

The Government has supplied the following information:

The Government has sent a copy of draft reforms to the Labour Code, to the law on trade unions, to the regulations on the right of public servants to strike, and to the Penal Code, so as to bring national legislation into conformity with the Convention and to introduce in domestic law the fundamental principles and standards of trade union law as set forth in the International Labour Conventions ratified.

These texts were forwarded by the President of the Republic to the President of the Congress on 17 May 2000 for review and approval by the Congress.

In addition, before the Conference Committee, a Government representative, Minister of Labour and Social Protection, stated that the Government had complied with its obligation to draw up draft reforms to the law to bring the labour legislation into line with Convention No. 87 and had submitted this to the legislature for its approval. The aim of the draft was to resolve the majority of the observations made by the Committee of Experts. He expressed his satisfaction in participating in the present meeting of the Committee, since he was convinced that substantive standards must have mechanisms allowing verification of compliance, particularly through the supervisory machinery of the ILO, if they were to avoid becoming meaningless statements. Last year at the 87th Session of the International Labour Conference, the previous Government of Guatemala had stated before this same Committee its commitment to a revision of its labour legislation, so as to comply with Convention No. 87. Contacts had subsequently been established with the ILO Regional Office to request technical assistance. The Committee of Experts had asked the Government to inform it in its next report on all measures adopted in this connection. This report had to be returned by the month of September of this year, which meant that the Government had complied with its obligation to submit a report four months earlier than called for. The present Government of Guatemala took office on 17 January 2000 and had fulfilled this prior obligation within only four months, to execute a state engagement, since the Government held the firm conviction that the obligations of the country must be respected and honoured. Moreover, the Government was convinced that society must live in respect of its own rules as the only means of achieving peace and progress.

Within the field of employment, the Government was firmly convinced of the need to support bilateral relations between employers and workers, in compliance with article 106 of the political Constitution of the country which protected and encouraged collective bargaining, for the purpose of which the existence of trade union organizations which could truly represent the interests and rights of the workers was unquestionably necessary. At all events, this was mandatory under the Labour Code, which established in article 211(1) that the Ministry of Labour must protect and develop trade unionism.

Since the Government's conviction was to act speedily, and because one of the fundamental pillars of the Government's programme was to combat poverty, which could be achieved, inter alia, through justly remunerated employment, he read the note dated 17 May from the President of Guatemala which had accompanied the draft reforms to the legislature. This read as follows: "It is my pleasure to submit to you the draft reforms to the Labour Code, to bring the legislation of Guatemala into compliance with Convention No. 87 ratified by our country. The State of Guatemala, as a Member of the International Labour Organization, is obliged to give effect to this Convention, incorporating into its national law the guiding principles or standards regarding the right of freedom of association and other provisions contained in the international conventions approved and ratified by Guatemala in the field of employment. The Government of the Republic, through the powers conferred on my office under article 183(g) of the political Constitution of the Republic, submits this draft law for consideration and approval by the Honourable Congress of the Republic, and considers it necessary to include within the Labour Code the provisions concerning freedom of association in such a way as to fulfil the obligation of the State of Guatemala as a Member of the International Labour Organization."

The draft reform included standards of compliance and provided for sanctions to discourage violation of the provisions of the Labour Code. A draft was also being prepared to update the Procedural Labour Code to ensure that the labour courts should be fast and efficient. These drafts would be submitted to employers' and workers' organizations at the ILO Area Office. The Government representative stated his certainty that the Committee would take note in its conclusions of the progress achieved by the Government in this area, and that these conclusions would encourage Congress to approve the draft definitively and transform it into the law of the Republic.

The Worker members thanked the Government representative for the information he had supplied and observed that Guatemala had been on the Committee's agenda for a very long time, much of it regrettably for this very case. In its comments the Committee of Experts listed various matters relating to infringement of the right to organize, which was at odds with Convention No. 87. These included the supervision of trade union activities; numerous restrictions on trade union activity based on nationality; the requirement to declare the existence of a criminal record; that the workers should be active in the enterprise; several restrictions on the right to strike, including the imposition of prison sentences of up to five years.

The Committee on the Application of Standards has examined this case since the 1980s and devoted a special paragraph to it in 1985. Since 1990 the Committee had discussed the case on six separate occasions. In 1985 a direct contacts mission took place. Numerous complaints had been put to the Committee on Freedom of Association bred by the tense social conditions and anti-trade union violence in the country. In 1997 the Worker members shared with others the hope that the peace process would usher in marked improvement in social conditions and checks on the impunity associated with breaches of freedom of association. But in 1999 it appeared that the Government was relying on procedural questions to justify its inaction.

In the absence of progress since 1991 and in view of the persistence and serious problems relating to the implementation of Convention No. 87, the Worker members again appealed to the Government to adopt as soon as possible suitable measures to ensure the application of a Convention which is fundamental both in law and in practice. They also requested that the conclusions of the Committee should appear in a special paragraph. The Worker members referred to the statement made by the Employer members last year: "On the issue of the interference of public authorities in the internal administration, programmes and the structure of trade unions ... changes without delay were required since these matters had been under discussion for a number of years." In his statement to the Conference in 1999 the Government representative had said that his Government was aware that its compliance with Convention No. 87 had been at the centre of debate for a number of years both in the Committee of Experts and the Conference Committee and that the matter could no longer be deferred.

The Worker members said that their reason for quoting from the previous year's debate was that once again they had been forced to acknowledge that though the Committee had received promises it had not seen any progress. Year after year the Government had said that it was moving in the right direction and change was on the way. But in the end the Committee of Experts passed on the same familiar comments, reporting persistent defiance of freedom of association. The Worker members concluded that in view of the persistent breach of Articles 2 and 3 of the Convention, particularly Article 3, paragraph 2, the Committee should request that national law and practice reflect draft amendments to the Labour Code, trade union law and the rules governing civil servants' right to strike as well as amendments to the Penal Code to bring national legislation into line with the Convention and to introduce the fundamental principles and standards of freedom of association into municipal law in harmony with the International Labour Conventions ratified by the country.

The Employer members noted that the case of Guatemala in respect of Convention No. 87 had been examined on several occasions in recent years. This fact was regrettable since it demonstrated that the Government was not complying with its obligations under the Convention. If one compared the comments made by the Committee of Experts this year with those of last year, there was very little information that was new.

Turning to the issues raised in the comments made by the Committee of Experts the Employer members noted that these could be divided into two parts. The first part dealt with legislative provisions of the Labour Code which allowed for the possibility of Government interference into the structure and activities of trade unions. This part was a clear violation of the Convention. The second part of the Committee of Experts' comments dealt with legislative provisions relating to labour disputes and, in particular, the right to strike. As mentioned in previous years, the Employer members recalled that Convention No. 87 did not regulate the right to strike. It was demonstrated in the preparatory notes drawn up when the Convention had been elaborated that it had not been intended to regulate the right to strike. Hence, the Employer members did not consider that Convention No. 87 had been violated with regard to the issues concerning the right to strike.

Turning to the national tripartite committee concerning international labour issues, the Employer members were of the view that its work was not very effective. There appeared to be a lack of political will by the parties represented in this national committee to collaborate. The Employer members considered that the current situation in Guatemala was also the long-term consequence of the civil war. Although a peace agreement had been concluded by the parties, the process of reconciliation was long and it was fairly difficult to reach a real and lasting peace. However, while this issue complicated matters, it was not an excuse for the Government to infringe the Convention.

The Employer members therefore considered that the Government should be urged, in the Committee's conclusions, to take measures to bring its legislation in line with the provisions of the Convention. However, the conclusions should also reflect that the Government had supplied a draft bill to the Office in May. Nevertheless, it should also be noted therein that the Committee should await the comments of the Committee of Experts on the draft legislation before coming back to this case, if necessary.

A Worker member of Guatemala stated that he had been informed by the statements of the Minister and by the written information provided by the Government of a draft law before Congress aimed at bringing legislation into conformity with Convention No. 87, made in relation to the repeated requests of the Committee of Experts. He stated that draft laws were manipulated in Congress and that there were no guarantees that the requirements of the ILO would be respected. Nevertheless, the challenge had been raised. Furthermore, he underlined the absence of political will which would ensure respect for the existence of trade unionism in practice. The speaker listed various examples of the systematic violation of the right of freedom of association. Trade union actions were penalized and criminalized with the aim to persecute, intimidate, demoralize and destroy the trade union movement and its organizations. Agricultural workers who had requested raises in wages were the object of criminal charges and were condemned to 20 days' incarceration; the trade union SITRABI and its leaders were the object of criminal proceedings, and 200 persons had raided the headquarters of the organization and made death threats against its officers. If one looked beyond the proposals of the Government, the reality was dramatic and stark. In industry, banking and agriculture, an instruction manual was in use on how to obstruct or eliminate trade unions. Dozens of trade union officials had been assassinated, and the highest judicial authorities did not prosecute the murderers, creating a situation of impunity. It was a matter of urgency to address the situation because, should workers lose confidence in the law, they would seek other means.

The Employer member of Guatemala stated that he could not refer to the draft law of which the Minister had spoken, since he had not seen it. The employers had only been shown the draft yesterday: clear evidence of its non-tripartite basis. To comply with the recommendations of the experts, one of the fundamental principles of the ILO had been violated (in complying with Convention No. 87, Convention No. 144 had been violated); under the pretext of applying the law, the law had been violated. As everyone knew, the Machiavellian saying, that the end justifies the means, was tenable neither ethically nor legally.

The recently elected authorities in Guatemala had governed for less than five months and this was the second case of violation of tripartism; which, beyond the simple ratification of Conventions, was developing into a healthy practice in Guatemala; thus, for example, important changes had been approved, such as the reforms to the Labour Code derived from the peace agreements. On the first occasion tripartism had been violated, when the Executive had submitted to the Congress of the Republic the draft concerning employment legislation which had just been adopted as a law of the Republic, the employers had been obliged to show their rejection of such a practice by leaving the tripartite discussion, since if genuinely important issues were not brought to its notice, such discussion had no meaning. This was the second occasion on which tripartism had been violated and he therefore had no choice but to address the Committee in these terms. The Minister might claim that consultation had not taken place as a result of the employers' attitude, following the first violation of tripartism referred to earlier, when the employers had quit tripartite discussion. This position was, however, untenable, since the employers had neither been convened as they should have, nor had they received a copy of the draft law, as was appropriate in application of tripartism. He questioned whether imposition without dialogue was to be the guiding principle on which labour relations and government in his country were to be based.

Perhaps the experts would not be concerned in respect of Convention No. 87, but they would certainly be so regarding the practices contrary to Convention No. 144. To solve one problem, another had been created, with serious consequences for the dialogue and concertation so necessary to Guatemalan democracy and peace, the construction of which had begun at the end of 1996. In conclusion, the Employers called on the Government to return to tripartism as the best way of guiding relations in the production sector. He requested that the conclusions of the present Committee should reflect the fact that the draft to which the Government had referred regrettably had no tripartite basis.

The Worker member of Norway, speaking on behalf of all the Workers from the Nordic group, fully supported what had been stated by the Worker members. Guatemala had ratified Convention No. 87 in 1952. In its comments on the Government's report, the Committee of Experts had once again recalled that there were a number of restrictions on the right to organize and the right to strike in the Labour Code. These restrictions reflected the completely unacceptable attitude on the part of the authorities vis-à-vis trade unions and trade union activities. By not having brought its legislation into conformity with the Convention, the Government in fact tolerated and contributed to the violations of the Convention it had ratified, but by no means implemented.

The Norwegian trade union movement was well acquainted with abuses towards workers in the country, especially in the banana sector, through direct cooperation with its sister union in Guatemala, UNSITRAGUA, and through reports from the ICFTU and Amnesty International. Workers were dismissed for no other reason than union membership and the authorities participated actively in the harassment of workers. When a subsidiary of one of the main multinationals in the banana sector dismissed 1,000 workers in September 1999, workers were gravely mistreated. Worse still, in October of the same year, paramilitaries had broken into trade union premises, held trade union leaders at gunpoint and forced them to sign resignation letters. Although the trade union premises were only 400 metres away from the police station, at no point did the police do anything to investigate these grave violations. The passiveness of the Department of Labour in the maquila industry (Export Processing Zones) was well known. While there were 11 unions in the sector in 1996, there were none today. Factory owners dismissed union members and "closed" plants with organized workers, only to reopen them and hire more compliant workers.

The Committee had been informed that the Government might now show signs of understanding the gravity of the situation and that it would no longer tolerate the non-respect of Convention No. 87. Copies of draft amendments to the Labour Code to bring it into conformity with the Convention had in effect been forwarded to the Office very recently. However, promises to change existing laws had been given earlier -- and not kept. It would be shameful to repeat this exercise again. It was hence the responsibility of this Committee to ensure that the Government brought its law and practice into conformity with the Convention, and thus to ensure the effective protection of the workers' rights to organize, bargain collectively and take part in industrial action.

The Worker member of the United States pointed out that many of the issues raised by the Committee of Experts in its report last year were now before the Conference Committee without any final and satisfactory resolution. The Minister had made tremendous efforts to change things for the better in a short period of time, including putting forward proposals to Congress for changes to the Labour Code which would remedy some of the issues of non-compliance mentioned by the Committee of Experts, under Convention No. 87. However, the Minister was limited by other elements including the Congress, a judiciary with full jurisdiction over labour matters, employers who had adopted anti-union and anti-worker modus operandi and a lack of budgetary resources to underwrite his plans and programmes.

He wished to highlight a few of the examples of non-compliance with Convention No. 87. Referring to the points mentioned in the Committee of Experts' report, he pointed out that although the Labour Ministry had proposed amendments to remedy some of the violations contained therein, they still remained ineffective. Secondly, there was the troubling question of the Guatemalan judiciary. According to reports from representatives of the AFL-CIO Solidarity Centre, many of the eight regional tripartite conciliation and arbitration tribunals, designed to resolve disputes relating to freedom of association, were not operative. Very few cases had reportedly been resolved by these tribunals, which had originally been established to address the problem of over-centralization of the labour justice system in Guatemala City. This situation had denied workers in the countryside access to the courts. Thirdly, the reforms proposed by the Labour Ministry would not resolve violations of Convention No. 87, originating in the criminal justice system and the Penal Code. An example of such a violation could be seen in the Committee of Experts' reference to section 390(2) of the Penal Code, which could be used to impose prison sentences on those engaging in legitimate strike activities. Finally, there was also the problem of impunity for those responsible for committing criminal offences against trade unionists and their families. For example, it was his understanding that the 12 cases of assault, battery, kidnapping, murder, torture and death threats against Guatemalan trade unionists and their families, which occurred between 1994 and 1995 and which were reported to the United States trade representative in January 1996, were still unresolved without conviction or redress.

In conclusion, the ILO should do everything within its powers to ensure that the Minister's plans to bring about genuine compliance with Convention No. 87 in his country prevailed. He called on his own Government, specifically with regard to its projects to assist in the modernization of Central American labour ministries, to actively engage with the Minister and the Guatemalan labour movement, to enhance the enforcement capacity of both the Guatemalan Labour Ministry and the judiciary.

A Worker member of Colombia emphasized that the legislation of Guatemala contained unacceptable obstacles to freedom of association. He hoped that next year the promised new law regarding trade unions would appear and recalled that promises made by previous governments were never fulfilled. It was necessary to respect the rights of trade unions and to guarantee the development of freedom of association. Furthermore, the Government should guarantee that trade union activities would not be criminalized, and it should eliminate the existing situation of impunity. He recalled that a democracy without trade unions was a caricature and that unions should be strengthened in order to avoid the violent conflicts well-known around the world.

A Worker member of Uruguay indicated that it was clear from the reports of the Committee of Experts, the statements by the Worker members, and by a Worker member of Guatemala, that the situation in Guatemala was in violation of Convention No. 87. The Government's intentions in submitting a draft law to Congress were positive, but this case should continue to be monitored and examined again in 2001 if there was no progress. He hoped that the present Minister of Labour would not forget the principles for which he had fought when he was a trade union leader.

The Government representative indicated that he understood that all opinions which had been expressed were intended to be of assistance to Guatemala, but he found it regrettable that these opinions strayed from the observations of the Committee of Experts and touched on criminal acts which were not part of the discussion or on matters related to the application of Convention No. 144. He underlined the intention of the new Government to do what was necessary to move along the processing of the draft law recently submitted to Congress, which, he recalled, had only been in power for four months. With regard to the statement by the Employer member of Guatemala indicating that the Government did not respect tripartism, he recalled that it had been the employers who had abandoned tripartite consultations and had declared that they would not return. Nonetheless, he invited employers to rejoin tripartite discussions and indicated that they would be reconvened in July. With reference to other interventions, he indicated that the enterprise Bandegua and the trade union SITRABI, had arrived at an agreement to rehire 918 dismissed workers, as well as the recent decision by the court of Puerto Barrios to open oral proceedings against 23 persons for criminal acts in relation to the conflict in the banana industry.

The Worker members considered that the arguments that they had put forward one year earlier and which they had referred to were still very topical. They noted the Minister's statement about the bill submitted to Congress even though it had emerged from debate that the social partners had not been consulted. They dared to hope that the policy as announced would be translated at last into action. While waiting for promises to give way to action and for the Committee of Experts to form an opinion, they requested that the Committee should state in the firmest possible terms its concerns about anti-union practices and culture in the country.

The Employer members, referring to the statements made by a few Worker members that the Minister of Labour had been a former trade union activist and that he should therefore not forget his background in performing his work, hoped the Minister would fulfil his duties for the well-being of all people living in Guatemala. The Employer members added that the bill first needed to be examined by the Committee of Experts. In the light of that examination, this Committee could perhaps reach different conclusions. However, in the meantime the Government should provide a detailed report which should be established in consultation with the social partners in conformity with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

The Committee took note of the written and oral information supplied by the Minister of Labour and of the discussion that took place in the Committee. The Committee recalled that the problem of non-compliance of national legislation and practice with the provisions of the Convention had been examined by the Committee of Experts and discussed in this Committee over many years, including the previous year. The Committee took note of the development announced by the Government representative, which had just occurred, that draft legislation to amend the Labour Code, the trade union legislation, the regulation on the right to strike and the Penal Code, in order to bring them into conformity with the requirements of the Convention, had been sent by the President of the Republic to Congress for adoption on 17 May 2000. The Committee indicated that it would be for the Committee of Experts to examine the compatibility of these amendments with the provisions of the Convention and trusted that these amendments would finally allow the full application of this fundamental Convention, ratified in 1952. The Committee was still concerned by the lack of concrete progress in practice. The Committee expressed its firm hope that the Government would send a detailed report to the Committee of Experts and a copy of the amendments adopted so as to allow it to make an assessment of real progress in law as well as in practice by the following year. It recalled the importance it attached to tripartite consultations with regard to the application of the principles of freedom of association.

Individual Case (CAS) - Discussion: 1999, Publication: 87th ILC session (1999)

A Government representative stated that in April 1997 the Guatemalan Ministry of Labour had submitted to the Tripartite Committee on International Labour Affairs, the observations on the discrepancies which the Committee believed to exist between national legislation and Convention No. 87. This first round of discussions did not yield a consensus on the draft reform, as the Committee of Experts had noted in this year's report. It had also taken note of the internal difficulties which had prevented the Tripartite Committee from being set up since the beginning of 1998. One month after the Government representative had taken up office as Minister for Labour, in July 1998, the Tripartite Committee was set up. One of the tasks awaiting this Committee was to approve a working agenda; the Minister of Labour considered that priority should be given to recognition of the recommendations of the Committee of Experts therein. The agenda was to be proposed by a tripartite subcommittee, formed for this purpose. This subcommittee, like others, including the subcommittee mandated to revise a draft Bill to strengthen the sanctions regime of the Labour Code, had not submitted a proposed agenda. It should also be noted that the Committee had functioned irregularly and had difficulty in achieving a quorum. For example, in 1999, only five of the 15 sessions provided for took place. The Government, in line with the provisions of the peace agreements, laid stress on tripartite dialogue, since it considered it the most suitable method of dealing with the various fields of labour relations, including issues such as an agreed alignment of the provisions of national legislation with Convention No. 87. The Government acknowledged that the issue of respect for Convention No. 87 had for several years been the subject of the attention of both the Committee of Experts and the present Committee, and that his own attention was, therefore, inevitably engaged. The Minister for Labour requested the Tripartite Committee to declare this a priority issue, so as to initiate discussion as quickly as possible, establishing a reasonable time-limit to arrive at conclusions, with the understanding that beyond this limit, should agreement not be reached, the Ministry for Labour would elaborate draft reforms to submit for the consideration of the legislature. He expressed his hope that in this the Government could count on the technical assistance of the ILO, so that the proposals of the Tripartite Committee, or in their absence those formulated by the Ministry for Labour, should receive adequate technical aid. Technical assistance would also be required in respect of the final question referred to by the Committee of Experts in its report with regard to essential services. The Government had the political will to promote and instigate action in this connection, to arrive at an agreement and a solution to the issue raised by this Committee.

The Worker members thanked the Government representative of Guatemala for the additional information that he had supplied and recalled that this case had been examined by the Committee for many years. The situation of freedom of association in Guatemala was the subject of a special paragraph in 1984, and was also examined in 1991, 1993, 1995, 1996 and 1997; in addition, a direct contacts mission filed its conclusions in February 1995. Already in 1996, the Workers' group had qualified this case as very serious because of the context of violence and repression that reigned in the country. In 1997, at the beginning of the peace process the Committee as well as the Committee of Experts, while indicating their understanding of the situation, asked the Government to take the necessary measures as soon as possible to put an end to the interference of public authorities with the activities of trade union organizations and to other restrictions on trade union freedom.

The comments of the Committee of Experts referred once again this year to violations of essential trade union rights such as: the monitoring of trade union activities, multiple restrictions on the right to organize based on nationality, existence of a police record, aptitude for or having an occupation and limitations on the right to strike with contraventions subject to the imposition of prison terms of up to five years. It was appropriate, moreover, to recall the numerous complaints that were pending before the Committee on Freedom of Association.

The report of the Committee of Experts indicated the intention of the Government to examine the question of services that were not considered essential in the context of the right to strike. However, with regard to the other points raised, the Government referred international questions to the Tripartite Committee. The development of the situation could not be considered satisfactory. Two years ago, the Workers' group had already made known its apprehension in indicating that the existence of purely formal structures was not only insufficient but could also be the basis for new delays enabling abuse and impunity for the perpetrators. It was regrettable to observe that no measure had been taken to put the Labour Code into conformity with the provisions of the Convention. The Government seemed to use the above-mentioned Tripartite Committee to justify its lack of action in so far as until now no initiative had apparently been taken to place the questions raised by the Committee of Experts on its agenda.

In addition to this lack of progress there was a difficult and violent social climate. The complaints that had recently been filed with the Freedom of Association Committee by the CGT of Guatemala, the CLAT and the CMT, on the one hand, and by the CISL, on the other hand, were evidence of a situation where labour insecurity and instability, arbitrary dismissals for trade union reasons, threats and many anti-trade union acts including kidnapping and even the assassination of trade union leaders and militants prevailed. This situation, in addition to the impunity of those responsible for such crimes, required great vigilance. It was unacceptable and frightening to note that the inertia of the authorities was paid for in human lives.

Despite the observations that had been formulated on many occasions, no progress had been noted since 1991. Faced with continuous and serious problems with the application of the Convention, the Committee's conclusions should be included in a special paragraph and the Government once again encouraged to adopt the required measures to ensure the application of the provisions of this fundamental Convention as soon as possible, both in law and in practice. The Workers' group intended to discuss this case next year and hoped to observe progress in the application of the Convention, in the absence of which the conclusions of the Committee should be renewed in another form.

The Employer members stated that in the 1980s the Committee had dealt with this case from time to time and in the 1990s again on five occasions, most recently two years ago. They noted that the case concerned many restrictions on freedom of association. While many of the problems could be linked with the long civil war, since the signing of the 1996 peace accord, the prerequisites for positive change had existed. In 1997, the Minister had announced the Government's intention to make the necessary legislative changes and in this context to set up a tripartite committee. It was now obvious that this Tripartite Committee was not active. They noted that according to the Government some of the delays resulted from the fact that the Workers' group could not agree concerning its presence on the committee and, therefore, only a few of the scheduled meetings could take place. However, this could not justify a large number of the other criticisms that had been levelled by the Committee of Experts, particularly concerning interference in the internal administration of trade unions. The State was not entitled to interfere in the internal administration of trade unions, and in this regard there had clearly been a violation of the Convention.

As regards the Committee's observations concerning the right to strike, they disagreed with the views expressed by the Committee of Experts. The Employer members were of the view that since the Convention did not provide detailed regulations in this respect, none should be inferred. The Committee of Experts' interpretations with regard to the right to strike were too far-reaching and did not derive from the provisions of the Convention. In this respect, the Employer members could not share the recommendations made by the Committee of Experts to the Government on this point. They welcomed that questions concerning industrial relations were being addressed in the context of national tripartite consultations. However, since issues of industrial disputes were an internal matter, it would be inappropriate for the Committee to comment thereon.

On the issue of the interference of the public authorities in the internal administration, programmes and the structure of trade unions, the Employer members emphasized that changes without delay were required since these matters had been under discussion for a number of years. While the delays in remedying the violations could partially be attributed to the social partners themselves, they stressed that ultimately the Government must take responsibility for ensuring compliance with the Convention. They acknowledged that there was a difference between a peace accord and true peace, and stated that it was likely that difficulties in changing law and practice had been a consequence of the long civil war. In their view, the Committee should urge the Government to take more active measures than in the past to bring about the necessary changes, and they called on the Committee to address an urgent appeal to the Government in this regard, including asking for all relevant reports. They stated that if no progress was observed, this case should be examined again by the Committee but in a different form.

The Worker member of Guatemala said that the Government of Guatemala should be obliged, once and for all, to cease confusing the national and international communities with double talk. Democracy and peace for the people could not be obtained through talk and promises and still less with signed pieces of paper. Democracy and peace was built on firm facts including, among other things, freedom of association and the respect of fundamental rights of persons, contained in the ILO's Conventions, and in this case in Convention No. 87.

He reiterated that Guatemala's legislation was not in conformity with the provisions of the Convention, despite the many observations of the Committee of Experts and the fact that this case had been discussed before this Committee for many years. The lack of political will of the Government was demonstrated by the fact that it had been necessary to resort to a direct contact mission in 1995 that dealt with the violation of trade union rights and the lack of union freedom which had been denounced by the Guatemalan trade union movement. Although the Government had always agreed to respect union freedom and bring legislation into line with the recommendations of the Committee of Experts, the situation remained the same. A United Nations report in March 1999 raised the question of non-respect of Convention No. 87 and referred to the views expressed by the Committee of Experts, citing concrete examples.

He regretted that the Government of his country tried to justify with false statements the impossibility of bringing Guatemalan legislation into harmony with the recommendations of the Committee of Experts, which they had claimed was due to a lack of consensus in the Tripartite Committee. He stated that he had been a titular member of this committee in existence since 1998 and that during this time he had seen no draft bill bringing national legislation in line with the recommendations of the experts.

Another Worker member of Guatemala stated that government supervision of union activities had enabled the General Labour Inspectorate to interfere with workers' trade union organizations. This was the case with Hidrotecnica SA where, in February 1997, the Labour Inspectorate had altered the employment registers to enable the employer to dismiss all workers who were members of the trade union. The previous Minister for Labour, in response to the union denunciations, had initiated proceedings within the Public Ministry for falsification of documents. To date, however, the case was not resolved, the workers remained dismissed and the union destroyed.

The speaker pointed out that the Penal Code regulation which enabled judgement to be passed on those persons whose intent was to paralyse or disturb the functioning of enterprises, had been used by the enemies of trade unionism to pass penal sentences on workers constituting a union, and that this had occurred in several cases in coffee and banana plantations, where approximately 200 workers were charged with criminal offences for simply being trade union members. Those who considered that trade unions were harmful to enterprises and the national economy used this regulation to destroy the unions, by converting them into criminal institutions. During the war, trade unionists had been murdered and now, during the peace process, they were imprisoned in application of dubious judicial procedures with only the appearance of legality.

The speaker said that freedom of collective bargaining and the right to strike had been removed from workers in the public sector and arbitration had been imposed on them, thus violating Conventions Nos. 87 and 98. Since the entry into force of Act 35-96 of 27 May 1996, prohibiting collective bargaining and strikes, there had been no cases of arbitration, which meant that these workers had lost all their rights. The report of the Committee of Experts showed clearly that labour legislation in Guatemala violated the principles of freedom of association, collective agreement and the right to strike contained in the Conventions ratified by Guatemala. This trade union policy resulted in those workers claiming their rights being met with acts of violence, such as had occurred in 1998 on the El Paraiso banana plantation. On two occasions, the peasants had been fired on from a helicopter inflicting bullet wounds on a worker each time, while the aggressor still went free. This year, two workers from Zacapa were murdered for trade union activity, while the author of the crime remains at liberty. There had been a recent spate of death threats against trade union leaders.

The speaker called on the international community united in the ILO and at this Conference, to obtain its support so to avoid returning to the past of the horror and death at the time of war. He urged that his country should respect the agreements undertaken and establish a true rule of law, to bring an end to the lack of punishment for the violation of workers' rights. He requested that Guatemala should be included in a special paragraph, since no positive results had emerged from the direct contact mission of 1995. Since July 1998, when the present Tripartite Committee was established, the Government had made no presentation on any issue relative to the Committee of Experts' observations.

A Worker member of Brazil stated that the Government of Guatemala's action over workers' associations was very worrying and there had been cases of persecution and murder of trade union leaders. Convention No. 87 was one of the mainstays of fundamental rights of the ILO, and the freedom inscribed in its Article 2 was quite incompatible with everything at present happening in Guatemala. Workers should be able to organize their unions free of all government supervision and in conformity with Articles 2 and 3 of the Convention, they should be free to elaborate their statutes, which was to say that they should be able to elect freely anyone who wished to join their executive committee. The same could be said of the right to strike. Striking was more than a right, it constituted an expression of freedom. In conclusion, he stated that essential services could not be understood in so wide a sense as to reduce the freedom of action of the Guatemalan unions. This was the spirit in which the decisions of the supervisory bodies of the ILO had been conceived.

The Worker member of Norway, speaking on behalf of the Worker members of the Nordic countries, fully supported the statement made by her Worker colleagues concerning the problems in the implementation by Guatemala of the Convention, which it had ratified as long ago as 1952. The Committee of Experts had recalled its previous comments on the case and listed a number of restrictions in the Guatemalan Labour Code on the right to organize and the right to strike. These restrictions on the establishment and activities of trade unions and the right to strike showed the Government's unacceptable attitude in the past to trade unions and trade union activities. However, this legal framework merely provided the background for the gross abuses of labour rights in Guatemala and legitimized the abuses committed by employers and the authorities. Minugua, the United Nations human rights organization in Guatemala, confirmed that the right to organize and freedom of association were severely limited by the authorities' failure to protect labour rights. By not bringing its legal framework into conformity with the provisions of the Convention, the Government was tolerating and contributing to the violations of the Convention. Workers were being dismissed for no other reason than trade union membership. In the few cases in which the courts demanded the reinstatement of dismissed workers, their orders were not followed. She stated that the authorities also participated in the harassment of trade union members. After a strike on a COBSA banana plantation, arrest warrants had been issued for 131 members of UNSITRAGUA. The charges had been based on lost profits during the strike, and were brought by a solidarist association in alliance with the COBSA banana plantation owners. In this way, a labour conflict had been turned into a criminal case. These charges and arrest warrants had only been revealed recently, even though the strike had taken place some time ago. In the plantations in question, 585 of 700 members of UNSITRAGUA had been dismissed, while all 355 members of the solidarist association remained employed.

She added that the passivity of the Department of Labour in the export processing industry is well known. In contrast with the 11 unions that had existed in the sector in 1996, there were none today. Factory owners dismissed union members and "closed" establishments where they considered there to be "too many" unionized workers, only to reopen and hire more compliant workers. Women workers were particularly vulnerable to harassment by their employers.

She emphasized that union leaders continued to be killed in Guatemala. In the consequent climate of fear, workers did not dare to organize or be actively involved in the trade union movement. She, therefore, urged the Committee to take the strongest possible measures to ensure that the Government changed its legal framework to bring both its law and practice into conformity with the Convention, and thereby ensure effective protection of the rights of all workers to organize and take part in industrial action.

The Worker member of Uruguay stated that the Committee of Experts' report was more than conclusive on this case. He wondered how it was possible that, among other incredible things, of the elected trade union executives, at least three had to be able to read and write. This was an attack on basic human rights. A person who had not had access to education could not be elected to represent his colleagues in respect of social and employment questions. The speaker asked whether by any chance it was their own fault that they could neither read nor write, whether there were any education plans, and what percentage of the GNP was spent on education. To illustrate the situation in Guatemala, he mentioned the case of a lawyer who, with respect to the employment of staff in an enterprise, indicated ways to discriminate against and persecute workers who engaged in trade union activities, always to destroy unions. This was a clear example of someone who had studied and who made use of his studies in attacking the unions and, in his position as lawyer, gave advice on the violation of the fundamental ILO Conventions. The speaker wondered what action the Government would take regarding these facts. The speaker stated that he was aware that the Government of Guatemala had been elected to the Governing Body and, he wondered how it would collaborate in the administration of labour law in respect of other countries and if it would not be better for it to bring its legislation rapidly into line with Convention No. 87, so as to be able to ensure the most fundamental of human rights in other countries.

The Worker member of the United States expressed regret that while the Committee had reviewed this case thoroughly on a number of occasions, most, if not all of the violations raised had not yet been remedied. He asserted that there could be violations of the Convention through acts of omission as well as of commission. It was, therefore, not only legal limitations on freedom of association that contravened the Convention, but also a government's failure to prevent effectively and remedy the interference of other parties in the workers' exercise of associational rights, such as in non-violent strikes and concerning organizing and collective bargaining.

He referred to the 1999 ICFTU report on Guatemala stating "every method in the book is used to destroy trade unions". He also made reference to the workers' rights and freedom of association review process of the General System of Preferences in US trade law. In May 1997, the US trade representative having completed a review on Guatemala, stated that the country needed to make substantial advances and changes, and reserved the right to reinitiate the review if necessary. However, the Government had failed to make those substantial advances and changes. He stated that the country's restrictions on the right to strike clearly contravened the Convention. In this context he pointed to sections 243 and 249 of the Labour Code and section 390(2) of the Penal Code which in his view prohibited any effective strike action in both the rural and the urban sector. He asserted that the statements made during the Committee only confirmed that the necessary legislative measures to redress these fundamental violations of the Convention had not yet been implemented. He expressed regret that the Tripartite Committee which was supposed to formulate these legislative measures seemed to have been at a standstill since July 1998.

He emphasized that a State's administrative and judicial capacity to protect and advance freedom of association was a key to its compliance with the Convention, and that, in May 1998, a Labour Code reform package had been passed ostensibly for this purpose. However, this reform totally failed to improve the enforcement capacity since it imposed no fines for violations and did not provide authority to the Labour Ministry to impose sanctions without having to await court action. Moreover, the Labour Code reform failed to ensure the implementation of article 380, providing that workers who had been unlawfully dismissed or victimized would be reinstated within 24 hours; many dismissed trade unionists had been waiting for years for redress. He joined a number of the other speakers in urging the Committee, given the lack of any progress even in the wake of direct contacts missions, to include this case in a special paragraph.

The Government member of Colombia stated that it would be dishonest to fail to recognize the profound harm that was caused by non-stop violation of Convention No. 87 by the Government and many employers. A quick glance at the report of the Committee of Experts sufficed to show the unacceptable manner in which the rights of workers were being denied and distorted and this with the greatest impunity. The political Constitution and the Labour Code set forth the rights and guarantees of workers but were in fact nothing more than a dead letter. The speaker cited various cases where workers had been dismissed and persecuted. He also mentioned cases where trade unionists had received death threats. He expressed the hope that the Government would take the measures to protect the lives of trade unionists and would give guarantees regarding freedom of association, collective bargaining and the right to strike. What was the point of signing for peace, if war continued?

The Worker member of Spain stated that, although the report of the Committee of Experts only dedicated a page to Guatemala regarding Convention No. 87, systematic attacks on freedom of association were regular in that country. In March 1994, a United Nations fact-finding mission to Guatemala had produced a new report giving details of attacks against unions. The report denounced continuous connivance between judges and the Government to persecute trade unionists. There were innumerable examples of such action. He cited a case in which the judges had accused several trade unionists of the crime of abortion in a United Nations report. A precautionary injunction had been at the origins of the procedure. Although the persons concerned had then been released, such action weakened the trade union structure. Indeed, a plan to destroy the trade union movement had been revealed in a Guatemalan newspaper. He also referred to the case of an enterprise which had dismissed its workers and, four or five months later, replaced them by workers who had no history of trade union involvement.

The Worker member of Bolivia indicated that it was unacceptable, from any point of view, to prohibit the right to strike and to impose one- to five-year prison terms in this regard. The spokesperson asked how trade union rights could be ignored when the workers themselves were the ones supporting democracies. He recalled that Convention No. 87 had entered into force on 4 July 1950 and that the Government of Guatemala had ratified it on 13 February 1952, but since then there had been no new developments. He called for full compliance with Convention No. 87.

A Government representative of Uruguay regretted Guatemala's position with respect to Convention No. 87 and hoped that the efforts referred to by the Government of that country would soon be made, so as to bring its legislation and practice in line with the letter and the spirit of the Convention. He stated that Uruguay had recently received a Tripartite Committee from the Ministry of Labour of Guatemala, which came to analyse the different aspects of the development of tripartism in Uruguay. The members of the Tripartite Committee had taken great interest in all the activities which had been proposed to them. This recent visit had given him confidence that the Government would expedite and promote the inevitable amendments to its legislation and its practice, in respect of Convention No. 87, so that the peace and democratization process might be clearly felt in the field of labour relations. The election of Guatemala to the Governing Body of the ILO only served to make this responsibility more clear.

The Employer member of Guatemala regretted that it had not been possible to discuss the issue in question in the tripartite committee, as indeed the experts had said in their report. This was due, among other reasons, to the fact that the trade unionists had been unable to agree on who should represent them. This was regrettable since the Employers shared the concern of the Workers regarding violation of Convention No. 87. He also stated that there had been 116 illegal work stoppages, and occupation of plantations and factories. For this reason, the Employers could not accept a special paragraph.

A Government representative stated that as regards the conflict which had ravaged his country for the past 36 years, the peace agreements were not agreements on paper only, but official declarations by his Government before the national and international communities and marked the beginning of a process which could be further improved. The root of the civil war lay not only in poverty and the lack of democracy, but also in the Cold War and in ideologies oriented towards substituting democracy with a dictatorship sustained by the class struggle.

The Tripartite Committee on International Affairs provided a forum in which solutions regarding labour relations could be sought and did not constitute a pretext for avoiding international obligations. However, the workers had not availed themselves of the opportunity to progress from denunciation to dialogue and had not put forward concrete proposals. He pointed out that although the Ministry of Labour had proposed amending the sanctions regime of the Labour Code, in the ensuing twelve month period, neither the workers nor the employers had replied to these proposals. He indicated that of the ten sessions suspended, eight were attributable to the workers' failure to attend Committee meetings, one to the employers, and one to the Government.

As regards the murders referred to, he considered that these kind of references were highly irresponsible. For example, in the case of the murdered trade union leaders in Zacapa, the investigations of the MINUGUA revealed that these trade union leaders and others who had been killed had been murdered for denouncing acts of corruption by municipal officials in Zacapa. Certain workers had made a number of erroneous statements claiming that judges, who were members of a body independent of the Executive, were colluding with the Governor.

As regards the death threats issued against the Secretary General of the CGTG, Mr. Jose Pinzon, these were denounced before the Tripartite Committee, whoc condemned these threats. The Ministry of Labour had requested an investigation into these threats by the appropriate authorities and had followed the case closely. When Mr. Pinzon was asked to provide a copy of the death threat which had been faxed to him, he replied that he had destroyed the fax.

In conclusion, he reiterated his Government's firm commitment to continue to work with the Tripartite Committee in the hope of reaching agreement on the Bill which would take account of the comments that had been formulated in this regard.

The Worker members stated in respect of the statement of the representative of the Government, the Employer representatives and the Employer representative of Guatemala, that other reasons for the non-functioning of the Tripartite Committee on International Labour Questions had been mentioned.

The Committee noted the oral information provided by the Government representative and the debate that followed. The Committee regretted to note that, despite the direct contacts mission carried out in February 1995 and the many debates that had been held in this Committee in the last decade, the Committee of Experts continued to note serious divergencies between the legislation and the Convention. The Committee had previously noted that a firm and lasting Peace Accord had been concluded under the auspices of the United Nations and with the participation of the ILO Area Office. It had expressed the hope that this agreement would result in a period of peace and social dialogue that would make it possible to give full effect in law and practice to this fundamental Convention, ratified by Guatemala 47 years ago. Deeply regretting the lack of progress, the Committee once again strongly urged the Government to adopt the necessary measures to eliminate without delay in law and practice the supervision of trade union activities by the public authorities, the restrictions on persons who were not nationals of Guatemala from holding trade union office and other restrictions on the exercise of the right to organize. Noting with concern the seriousness of the cases pending before the Committee on Freedom of Association, the Committee urged the Government to respect fully the civil liberties essential to the implementation of the Convention. The Committee insisted that the Government supply a detailed report to the Committee of Experts for its 1999 session on the measures actually adopted to give full effect to the Convention in law and practice.

Individual Case (CAS) - Discussion: 1997, Publication: 85th ILC session (1997)

A Government representative, Minister of Labour and Social Protection, recalled that on 29 December 1996 the Accords on a Firm and Lasting Peace had been signed by the President of the Republic and the National United Guatemalan Revolutionary Front (URNG). The Peace Accords, which were brought about under the auspices of the United Nations and the ILO, permitted an improvement in relations between workers and employers. The dialogue which had developed had helped to resolve differences, and was at the heart of the creation of the tripartite Committee of International Labour Relations which operated in the country. The speaker was grateful for the role that the United Nations and the ILO had played in negotiating the Peace Accords. The commitments contained within the framework of the Accords allowed the Ministry of Labour to modernize, strengthen, and decentralize the General Inspectorate of Labour and Social Protection Directorate, particularly in the areas of health and social security in work, and of labour relations. These commitments included the translation of the labour laws into the Mayan languages, amendment of the labour legislation, training of 200,000 workers, and the use of dialogue to resolve conflicts between workers and employers. The tripartite committee raised awareness, resolved many conflicts, and promoted bipartism. Within the framework of this Committee, draft legislation was being examined which would be sent at the appropriate time to the Congress for consideration. The workers and employers played an outstanding role in consolidating tripartism, brought about with the assistance and collaboration of the ILO's multidisciplinary team based in Costa Rica. The Government proposed to the Committee of Experts that it elaborate and adopt draft legislation, which had been submitted for approval to the tripartite committee, to harmonize the national legislation with the Conventions. In order to reform sections 211, 220, 223 and 243 of the Labour Code, in accordance with the recommendations of the Committee of Experts, draft legislation would be submitted for adoption at the next meeting on 26 June 1997. The Peace Commission and the ILO Standards Department had been informed of these developments. The speaker expressed his appreciation for the technical assistance of the ILO multidisciplinary team's specialists and the support of the Director of the ILO Area Office, and foresaw that such assistance would continue in the construction of a new Guatemala.

The Employers' members noted that this was a long-standing case which was being discussed for the 12th time since 1980 and had been the subject of three special paragraphs. In the late 1980s, the Committee of Experts had noted it once as a case of progress and a direct contacts mission had taken place in 1995. The protracted civil war had played a role, and they were pleased to note that the Peace Accords had created the possibility for constructive dialogue. They highlighted their concern over the restrictions placed on union activities: nationality requirements, the exclusion of candidates with criminal records, and the requirement that candidates be active in the enterprise at the time of the union election. The Employers' members noted that, according to the Minister of Labour, the Government would be ready to submit draft legislation at the end of June 1997. However, they could not share the views of the Committee of Experts concerning the right to strike, as they considered that this right did not flow from Convention No. 87. They noted the agreements reached by the tripartite committee, and expressed the hope that they would yield positive results. Lastly, the Employers' members asked the Government to send a detailed report to the Committee of Experts and hoped that they would be able to note full compliance with the Convention.

The Workers' members recalled that the case had been categorized as a very serious one during the discussion held in the Committee last year. It was very serious because of the facts described by the Committee of Experts, which pointed to a profound divergence between the legislation and the Convention. It was very serious also because of the total absence of cooperation on the part of the Government which boasted of having ratified a large number of Conventions. Finally, its seriousness was proved by the violence and generalized repression revealed by the numerous complaints before the Committee on Freedom of Association. The recent Peace Accords might open the way to reconciliation in the country and permit progress in the application of the Convention, in law and in practice. However, the situation was still at the stage of promises, while its gravity required urgent and significant action. While the Government could be commended on its willingness to adopt a new labour code, as it had announced before this Committee last year, no satisfaction could be drawn from the unsubstantiated reforms. In this respect, it was important to have information on the precise work of the numerous tripartite committees which had been mentioned and, in particular, on that of the tripartite committee on international labour questions, because the existence of purely formal structures was not only insufficient, but could lead to delays perpetuating abuses and impunity. Therefore, the Workers' members could not but share the strong hope expressed by the Committee of Experts that this tripartite committee would take into consideration, in the near future, all of the comments formulated with the view to the elaboration of the draft Code. This was particularly necessary in view of the very fragile political and social context characterized by the general climate of violence and deep anti-union attitudes. The numerous complaints concerning violations of freedom of association attested to the difficulties confronting workers in the exercise of their trade union rights: they were very often threatened, dismissed, attacked or even assassinated, while the anti-trade union practices of the national and foreign enterprises very often went unpunished. The involvement of the police authorities in these practices remained very worrying. It was therefore necessary to be extremely vigilant to ensure that the hope which had arisen from the Peace Accords would not be dashed by paper reforms which veiled violent anti-union practices. The Government should proceed rapidly, with the help of the Office, if necessary, to implement the proposed reforms and should provide a detailed report containing full information on the measures taken to bring the legislation and practice into conformity with the requirements of the Convention.

The Workers' member of Guatemala stated that the Government and employers violated national and international labour standards. The Peace Accords had masked the serious crisis which existed in his country and the loss of moral values. The Government's report contained unilateral information, since the workers' and employers' organizations had not been consulted. The Government had not made any effort to comply with the Committee's requests. An ILO direct contacts mission would confirm his assertions. The tripartite committee, mentioned by the Minister of Labour and of which the speaker was a member, did not promote dialogue and the search for consensus on trade union rights. In Guatemala, the freedom to organize and bargain collectively were restricted, as was evidenced by the destruction of several workers' organizations. Certain enterprises had filed court actions against unions and certain judges had fined the unions considerable amounts. The Government continued to issue standards contrary to freedom of association.

The Workers' member of Argentina recalled that the Workers' members had made specific criticisms on the discrepancies between the position described by the Government and the daily reality concerning trade union rights. Even though one should not forget the context of internal conflict in Guatemala, efforts should be made to secure the effective exercise of freedom of association. The Government should not create situations of anti-union violence, limit the right to strike or discriminate against agricultural workers in the exercise of their rights. Many Latin American countries had ratified ILO Conventions but their legislation did not recognize the rights those instruments established. The full exercise of democratic trade union activity could take place only in a country which favoured the protection of personal and union freedom in daily practice.

The Workers' member of Costa Rica recalled the statement made by the Government representative during last year's Committee which indicated that new legislation had been tabled before Congress and that a decision was awaited. In the present session, the Minister of Labour had indicated that draft legislation was before a tripartite committee. It was apparent that there was no political will to resolve the questions raised by the Committee of Experts. The conciliation tribunals created in Guatemala impeded collective bargaining, and the observation of the Committee of Experts had referred to government interference with unions. Union leaders should benefit from the rights established by the ILO core Conventions and should not be viewed as obstacles to consolidating social peace.

The Workers' member of Greece thanked the Minister of Labour for having taken part in the Committee's dialogue. He was particularly pleased that the Workers' member of Guatemala had spoken because the present Committee frequently discussed violations of freedom of association in the absence of the true representatives of the workers of the country in question. It was now indispensable that the Government repeal sections 220 and 223(b) of the Labour Code which legitimized discrimination of foreign workers, as well as section 241(c): workers knew very well that the success of a strike implied that it was supported by more than a simple majority of the workers involved. The judicial and other formalities to which workers were subjected in the election of their trade union leaders should also be removed, as well as other provisions mentioned by the Committee of Experts, such as section 255 which authorized the possibility of calling upon the national police to ensure the continuation of work, or the series of sections defining legal or illegal strikes. It was also necessary to repeal section 257 and section 390 of the Penal Code which threatened the workers engaged in a legal protest action with very severe penalties.

The Employers' member of Guatemala declared that progress had undoubtedly been achieved in the labour field in Guatemala, as illustrated by this year's revised list concerning the Generalized System of Preferences. Furthermore, the functioning of the Bipartite and Tripartite Committees was very satisfactory. The Government had shown tolerance towards strikes and peaceful takeovers of workplaces, and had even on occasions set aside the claims of employers. The Government's policy had made it possible to establish a large number of trade unions, including independent trade unions at the village level. Contrary to the claims made in certain statements, the trade unions of flour mill workers and bank employees referred to in the discussion were still active. In the case of the former, the dismissals had been a result of the acquisition by the enterprise of automated machines aimed at enhancing competitiveness and in the other case, the Los Cerros matter, a trade unionist had illegally confined the administrative personnel.

The Workers' member of Colombia expressed satisfaction at the signature of the peace accords. However, he emphasized that 45 years after the ratification of the Convention, the Government and the legislation continued to violate such basic rights as the right to organize, the right to collective bargaining and the right to strike. A direct contacts mission should be sent to Colombia as long as the Government had not shown a genuine commitment to apply the Convention.

The Workers' member of France understood from the statement of the Minister of Labour that the serious problems previously noted in Guatemala were to a large extent caused by the climate of tension. In view of the present situation, substantive changes, including a complete review of the legislation, could be hoped for in the near future. However, he emphasized that, while such reforms would take some time, certain immediate measures should be undertaken in order to ensure the full development of the trade union movement in a climate that was free of violence. Recalling that the case of Guatemala had been examined last year by the present Committee and that few changes had been observed, he insisted that it be subjected to continued examination in order to monitor whether any substantive progress had been made.

The Minister of Labour reaffirmed his earlier statement that the Tripartite Committee had reached agreement on 90 per cent of the points criticized by the Committee of Experts and the remaining issues would be discussed again on 26 June. A draft Bill would then be submitted to Congress. The Government wanted the reform of the labour law to be endorsed by workers and employers. The Bipartite Committee, in which the Government did not participate, was examining the reforms to the procedural part of the Labour Code, and was benefiting from ILO assistance. The revised list for the Generalized System of Preferences illustrated the improvement and progress in the situation in Guatemala, as recognized by the Government of the United States. The United Nations had recognized that the human rights situation had improved and that there was now no state terrorism. According to the reports of the Committee on Freedom of Association, denunciations of acts of violence against trade unionists had decreased in number. Violent acts were no longer perpetrated against trade unionists. If it were appropriate, the Minister of Labour would be ready to accept an ILO mission concerning the application of the Convention.

The Committee noted the information provided by the Ministry of Labour of Guatemala and the debate that followed. The Committee regretted to note that, despite the direct contacts mission carried out in February 1995 and the many debates that had been held in the present Committee in 1991, 1993, 1995 and 1996, the Committee of Experts continued to note serious divergencies between the legislation and the Convention. The Committee noted that a firm and lasting Peace Accord had been concluded under the auspices of the United Nations and with the participation of the ILO Office in San José, Costa Rica. The Committee expressed the sincere hope that this agreement would result in a new period of peace, social dialogue and industrial relations and would make it possible to give full effect in law and practice to this fundamental Convention, which had been ratified by Guatemala 45 years ago. The Committee also noted with interest the Government's intention to request the technical assistance of the Office once again. The Committee urged the Government urgently to adopt the necessary measures as soon as possible to eliminate in law and practice the control of the public authorities over trade union activities, the restrictions on persons who were not nationals of Guatemala from holding trade union office and the other restrictions on the exercise of the right to organize. The Committee urged the Government to transmit a detailed report to the Committee of Experts on the measures adopted to give full effect to the Convention.

Individual Case (CAS) - Discussion: 1996, Publication: 83rd ILC session (1996)

A Government representative recalled that Guatemala was one of the most long-standing Members of the ILO. It was also one of the countries which had ratified the greatest number of ILO Conventions which, while not necessarily signifying that it had always met its obligations, nevertheless proved the country's interest in participating in international agreements. For the first time in many years the national delegation was made up of people who were most representative on a tripartite basis and of the highest possible level.

For the last 35 years Guatemala had suffered from one of the most appalling armed conflicts which Latin America had seen in recent history, and it had seriously disrupted the operation of the country's institutions. Since 1985 the Guatemalans, with the assistance of the group of friends made up of Spain, Norway, Colombia, Mexico, Venezuela and the United States with direct participation by various institutions from the international community, including the ILO, had embarked upon a long and difficult process of rebuilding institutions and re-establishing peaceful relations between all sectors of society, including workers and employers. The country hoped to be able to bring an end to the armed conflict in the next three months on the basis of the signing of a final peace agreement.

A very painful consequence of the armed conflict had been the extensive spread of violent human rights violations, which had particularly affected workers because of their vulnerable political and social position. However, the situation had started to improve in terms of greater, more serious and reciprocal recognition between the social partners, their greater participation in decision-making at national and sectoral levels and, in general, greater respect for their rights of freedom of association, participation in the life of society, greater security and respect for them as individuals and as leaders of social organizations. In this process, the current Government, which only came to power on 15 January of this year, would like to reiterate its commitment to fully respect the principles of peaceful and democratic coexistence and of full respect for human rights, especially freedom of association.

First of all, the Government of Guatemala had decided to honour all its international commitments stemming from its ILO membership. Secondly, it intended to really and effectively eliminate from national life all factors which had implied or continued to imply restriction on the free action of citizens or which would perpetuate impunity in any shape, size or form, including with relation to labour matters. In this connection, the Government had agreed upon and was implementing unprecedented action directed at ensuring the total and irrevocable control by civilian authority over state institutions, including especially the security organs, at modernizing the legal system, including the adoption of a new Criminal Procedures Code, at strengthening of institutions which complemented an effective, swift and non-discriminatory justice system, including the adoption of new procedures for conflict resolution, in labour matters as well.

The speaker admitted that in the past the Government of Guatemala had failed to comply fully and in due time with its constitutional obligations vis-à-vis the ILO, including reporting obligations. Now, however, the Government was doing its utmost to change this conduct so that in the future it would be able to fully comply with this elementary but fundamental responsibility. Just six weeks ago, the Government and the representatives of the rebels, meeting in Mexico City, signed a document which contained the following points related to labour issues: observance of and strict compliance with labour law, including international Conventions; training of Guatemalan workers; dialogue and consultation between both sides of industry; joint training courses; and joint action on conflict prevention and resolution. Yesterday, the Government announced at this Conference that it had ratified the Indigenous and Tribal Peoples Convention, 1989 (No. 169), which could not even be dreamed of in the past.

In the course of this week, the Government would be providing written information on the cases indicated in the report of the Committee of Experts about violations of fundamental rights and difficulties facing people when they tried to establish a trade union organization. This document would be updated on the basis of reports provided by governmental institutions which were not dependent on the Ministry of Labour and Social Welfare. Furthermore, the Government of Guatemala agreed with the criterion of the Committee that: "The rights of workers' and employers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against these organizations' leaders and members and that it is for governments to ensure that this principle is respected." The Government would give detailed consideration to the comments made by the Committee on Freedom of Association and the direct contacts mission on the need to revise and adjust the provisions of the Labour Code. However, the Government on its own, and indeed together with workers' and employers' organizations, had assessed that, because of the political interests at stake in the national legislative body, it was reasonable to assume that such reforms might not be approved at the present moment as it would have wished. Therefore, in the tripartite committee, which was already operating very successfully in Guatemala, there was a preliminary consensus to the effect that any reform that might be suggested should be the result of an agreement taken on a tripartite basis between workers, employers and the Government. This subject had already been included on the future agenda of the tripartite committee.

The speaker further informed the Committee that the Ministry of Labour and Social Welfare, just five months after the new Government had taken power and on the basis of certain recommendations made by the direct contacts mission, the Committee of Experts and the Committee on Freedom of Association, had, inter alia, undertaken the following action:

- it had convened, organized and begun to run the Tripartite Committee on International Labour Matters and the tripartite training committee;

- secondly, Bills had been submitted to eliminate from the national legislation certain provisions of a discriminatory nature for political reasons (the Law defending democratic institutions), to eliminate provisions on forced labour through modifications to the Criminal Code, and to modify the Civil Code so as to remove certain discriminatory provisions for reasons of sex. The Government will keep the ILO informed and supply the relevant drafts;

- thirdly, on the basis of the above-mentioned agreement the Government will speed up the recognition of legal personality, the approval of the statutes and registration of trade union organizations;

- fourthly, a new agreement was drawn up on the basis of criteria set up by the Ministers of the Economy, of Public Finance and of Labour, through which drastic sanctions will be applied, including the cancellation of licences for individual or collective enterprise owners and directors who run maquilla enterprises where labour standards were violated. Additional measures were taken to strengthen the operative capacity of the General Labour Inspection Office.

With UNDP's support, the Government was going to implement a programme, the final result of which would be to prepare a proposal for arbitration proceedings relating to labour matters in order to solve conflicts at an early stage.

Finally, the speaker promised to transmit to the secretariat of this Committee photocopies of the following documents: a list of 123 trade unions registered between 1 January 1995 and 10 June 1996, a letter from the Central American Executive Secretariat of the CLAT which recognized the progress which had been made with respect to the registration of trade unions, and the Ministerial Agreement concerning the establishment of the Tripartite Committee on International Labour Matters.

The Workers' members stated that there were at least four reasons for which the case of Guatemala was very serious. First, whereas, last year, the Committee requested a detailed report, the Government did not respect its constitutional obligations concerning sending reports and replying to the observations of the supervisory bodies. Once again, the Government had promised that in the future it would take necessary measures so that reports would be sent on time. The Committee of Experts also "regretted to note that the Government has not replied to its comments". The explanations of the Government representative hardly differed from those a year ago: negotiations or tripartite contacts were mentioned, but there was truly an impression that no progress had been accomplished. To convince the Committee otherwise, the Government would have to send a very detailed report for examination by the Committee of Experts.

Second, this was the sixth time in 11 years that this case had been examined. During the previous meeting, an in-depth discussion took place during which the Workers' and Employers' members had very firm positions, and very precise conclusions were adopted. As early as 1985, this case was the subject of a special paragraph in the Committee's report.

Third, significant discrepancies remained between the legislation and the Convention, for example, the strict control of union activities by the Government. The Committee of Experts and the present Committee had insisted on the necessity to make the legislation more flexible in order to simplify setting up and operating unions. To set up and operate a union in Guatemala, one must be both an expert in administrative law and a very brave man or woman. The right to strike was recognized in principle, but the modalities and conditions were such that, in practice, even the principle of the right to strike did not exist and trade unions were not free to set up and implement their programmes. The replies of the Government to the comments and observations of the Committee concerning the legislation remained very vague. Initially, the Government stated that only Parliament was competent to change the legislation; however, in each country, the government proposed legislation and it was up to Parliament to adopt it. Then the Government mentioned that there was in fact greater flexibility in the application of the legislation in question, for example, as regards setting up trade unions. According to the available information and the complaints before the Committee on Freedom of Association, problems on this point remained in practice. Finally, the Government indicated that it was pursuing a dialogue with workers' and employers' organizations to perhaps modify the Labour Code, but the amendments introduced by Decree 64/92 in December 1992 were minimal. The Government admitted this during the previous session of the Committee. Moreover, there was a direct contacts mission in February 1995. On this point, it could be said that the Government was insufficiently committed to bringing the legislation into conformity with the Convention.

Fourth, there was a general climate of violence and a deeply anti-union attitude. The multiple complaints before the Committee on Freedom of Association clearly illustrated the difficulties confronting workers who wanted to put freedom of association into practice. They were too often dismissed, threatened, brutalized, and even murdered. The anti-union practices of paramilitary groups, police forces, and, unfortunately, a large number of national or foreign companies too often remained unpunished. Many employers had created or supported solidarist organizations to avoid constituting or to discredit a workers' union. At the previous session, the Workers' members pointed out that there were at least 400 enterprises with 100,000 members of solidarist organizations.

The Workers' members insisted that the Committee adopt very firm conclusions. In their opinion, the Government had too often promised improvement, and they requested that the conclusions of the Committee be placed in a special paragraph of its report. If this was not possible, they immediately requested that the firmest conclusions possible be adopted to insist on the necessity for genuine change. If the same promises were made without effective change, the Workers' members announced that next year they would request that the conclusions be contained in a special paragraph.

The Workers' members likewise requested that the conclusions contain very clear indications to the Government and those in charge of labour relations and human rights in Guatemala on the four points developed above: the Government must reply to observations of the Committee of Experts and to comments of the present Committee; it must send the reports due (the Workers' members consider unacceptable the Ministry of Labour's argument that it lacked the necessary resources); it must substantially reinforce the efficacy of the system for setting up a union, and repeal both administrative and practical constraints in order to promote freedom of association; it must ensure the freedom of action of unions and protect the physical and moral integrity of union leaders and their families; it must likewise insist that the efficiency of labour tribunals, the legal system and the inspection service, as well as the general rule of law, be significantly strengthened.

Lastly, it was necessary to encourage a stable and effective system of collective labour regulations.

The Employers' members, recalling the long history of this case before the Committee, stated that it should be looked into from the legislative situation, on the one hand, and the practical side, on the other. With respect to the legal situation, it was very clear that there were many divergencies between the currently applicable legislation in Guatemala and the requirements of the Convention, and this had been the case for many years. There were far too many obstacles which impeded workers from exercising the freedom to which they should be entitled under the Convention. While prohibition on strikes by agricultural workers at harvest time, for a country like Guatemala, could be said to apply to an essential service, even in the narrow interpretation of the Committee of Experts, the legislation governing the right to strike was perhaps too general and left too much room for arbitrary action on behalf of authorities. The Government representative had also made a general statement to the effect that in future the Government would honour all its obligations. He kept referring to the fact that major change was going to take place in the near future, but gave no details about the context of such proposed change. Therefore, once copies of the drafts to which he referred were available, they would have to be studied carefully by the Experts.

As regards the practical context of this case, over the past few decades there had been a situation similar to a civil war in Guatemala. The Government representative said that he had high hopes that it would now be possible to work seriously on reconstruction in the country, to reduce the atmosphere of violence, and to continue to work in an atmosphere of peaceful development. As stated in the report of the Committee of Experts, a special direct contacts mission went to Guatemala, there was a procedure before the Committee on Freedom of Association, and the Government and other authorities engaged in good cooperation with representatives of the ILO and provided a great deal of information. The Employers' members thought that it was high time these contacts had practical consequences and produced some tangible results. One positive sign in this respect that gave cause to hope that things might improve in the future in a more peaceful context was that a meeting of the tripartite committee which the Government had promised to set up last year, had finally taken place. The Employers' members believed that this Committee must once again ask for tangible practical change and request the Government to take measures which would bring about visible change in the situation. The Government must also be urged to file the outstanding reports as quickly as possible so that the Committee of Experts and this Committee could ascertain whether any positive progress had been made.

The Workers' member of Guatemala fully supported the statement made by the spokesman of the Workers' group. As a member of the Tripartite Committee on International Labour Affairs, he could observe that in practice this Committee had been talking at cross purposes. At the workers' request, it did make a start on setting up bipartite and tripartite groups to look at the various aspects of different labour conflicts, but, in fact, very little had changed in the situation in Guatemala.

On 5 June the Office had received a complaint concerning the violation of the workers' right to strike. By ordering the armed forces to go into the Congress in, what he called, an attempt to protect the MPs, the President had tried to coerce the members of Parliament to approve a law restricting the right to strike of the workers. The President of the Congress, after an intensive discussion with the plenary of the Parliament, requested the armed forces to pull out of the Parliament. However, this law was approved in record time. It was approved on 23 May, it was published on Monday, 27 May, and it came into force on 28 May. As the Central American Gazette where the laws were published did not circulate on 27 May, workers were not even able to be aware of the publication of the law in time to do anything about it. As to what was actually done in practice in Guatemala, the labour courts had literally thousands of labour conflicts files lying on their desks and so far just two had been resolved.

Another Workers' member of Guatemala stated that the trade union movement in Guatemala had indeed given this current Government the benefit of the doubt when it came to power. However, the results had been negative: the right to strike had been restricted and norms which had already been established, including those relating to collective bargaining, had been damaged and swept aside as well. What was happening in Guatemala was that there was absolutely no political will to accept, tolerate and work with the trade union movement. The anti-trade union interests in Guatemala were as strong now as they had ever been and they made it impossible to take any political decisions to improve the situation.

The other problem that had been referred to here was that of impunity. Justice was not applied in Guatemala. There was a deep-rooted culture of intolerance of the trade union movement, both in daily life and in daily practice. The most seriously affected sectors of Guatemalan society concerned rural workers and people who worked in the maquilladora industries and in the textile industry.

The restriction on the right to strike had affected also the national police employees. The national police was a civilian force, not a military force, but as a result of the new law the national police had been categorically stripped of the right to organize, in violation of the Guatemalan Constitution, including article 34 concerning freedom of association. This law made workers in the state sector unable to undertake any action to prevent structural adjustment measures, such as privatization and sell-offs, being implemented. The speaker concluded by stressing that the promises made by the Guatemalan Minister of Labour in this Committee were no doubt important and that some administrative progress had been made. However, the real problems facing the workers were not of an administrative or legal nature; they were problems stemming from a lack of political will to give the trade union movement a place in Guatemalan society and the possibility to function and operate freely.

The Workers' member of the United States strongly associated himself with the previous statements made by members of the Workers' group and emphasized that this was a long-standing serious case matching the worst in terms of violence this Committee had ever seen. Although the Government of Guatemala had made several improvements in the union registration process, it had gone backwards in several other ways. The National Assembly just passed a reform of the public service law by Decree 36/96 which prohibited the right to strike in a number of sectors not considered essential services by the ILO. This included the public transportation sector, the postal and telegraph service, the production, transportation and distribution of petroleum and oil products. With regard to other services considered as essential by the ILO, no provision was made for limited strikes in which workers were required to keep minimal levels of service functioning so as to ensure the health and safety of the population. Furthermore, the new law prohibited public employees from using court injunctions to protect workers from being fired after they had presented management with a list of demands for collective bargaining, which was the only small protection that workers in Guatemala had for management reprisals against legitimate organizing activities. In the private sector, employers routinely fired workers who attempted to form unions. Despite a law prohibiting such reprisals and calling for the reinstatement of illegally fired workers within 24 hours, it was seldom, if ever, carried out. Instead workers had to wait many months or even years of court appeals before any action was taken to reinstate them in their jobs.

Last year the Government decided to hear all complaints of a collective nature, including all the freedom of association and collective bargaining cases, in the Sixth and Seventh Labour Courts located in Guatemala City. Not only did this decision impose an impossible burden on workers in the countryside who must travel a long distance to bring a case, it also had resulted in a huge backlog of cases. Also, there were still far too many cases in which violence against workers was carried out with impunity, and the authorities failed to pursue full investigations resulting in the arrests and trials of the perpetrators.

Finally, the speaker mentioned one potentially positive step recently introduced by the Guatemalan Government to enforce its labour laws: the temporary suspension of export licences and linking the special privileges received by investors in the export sector, such as tax breaks and expedited customs procedures, with respect for workers' rights. Unfortunately, the only time the new remedy had been applied was against a company which had already decided to close down anyway. The speaker looked forward to the application of this new remedy in the future against other companies that flagrantly disregarded the labour laws of Guatemala.

The Workers' member of Costa Rica recalled that since 1986, this was the fifth time that Guatemala had been called to this Committee and, therefore, there had been more than ten years available to deal with the legal abuses which existed in Guatemala. However, those who had economic and political power were acting in a way that proved that Convention No. 87 and other basic rights were a dead letter in Guatemala and were going to continue to be a dead letter in Guatemala. He considered that once and for all the conclusions of this Committee in relation to this case should be emphatic and unequivocal.

The Workers' member of Panama pointed out that this was one of the most serious cases which had been raised in the Committee, particularly because of the issue of impunity and the lack of success of investigations into threats against and murders of trade unionists and people from the neediest sections of Guatemalan society. This situation had been exacerbated by the recent approval of the law prohibiting the right to strike for state employed workers, as in many other countries of Latin America. The police was given, by law, the right to ensure that work continued in the event of a strike, and three to five years of imprisonment awaited any union activists who called a strike. It was absolutely shameful that there were still countries like Guatemala where the Government had to use the law to deal with situations of this kind. Therefore he urged that a special paragraph be adopted for the Guatemalan case.

The Workers' member of Denmark stated that, while a lot was said about legislation, it was not enough to secure rights for workers. The Committee needed to know more in detail, more specifically what had been done since the last Conference in order to protect the security of workers and workers' representatives, and what were the future measures, in practice, in order to help the workers and their unions in this particular country. Concrete information was necessary instead of the statements and promises that the Government had been making all these years, and in the absence of such, the outcome might well be a special paragraph next year.

The Employers' member of Guatemala referred to the report of the direct contacts mission carried out by the ILO to Guatemala, which emphasized the very complex situation in Guatemala, a country that stood between war and an attempt at peace. The employers of Guatemala, like the workers of Guatemala, had been suffering from the consequences of the war, and the speaker gave a number of examples. The employers of Guatemala were also in a very difficult position because of the burden imposed by rebels of the armed faction fighting in Guatemala. They were also the victims of frequent kidnappings. Apparently this was no longer happening, but, while it did, millions of dollars were extracted from businessmen in Guatemala through blackmail. This meant that employers were, in many cases, simply not able to run enterprises with a free hand and in a way that would have been of benefit to all.

As regards freedom of association and trade union rights, substantial reforms were carried out to the Labour Code in 1992, which led to a reduction of the time required for the registration of trade unions, eliminated a lot of the formalities and red tape, gave protection to people involved in labour conflicts, etc. However, the courts and labour tribunals in Guatemala worked very inefficiently not only in labour conflicts but also in commercial disputes, in civil cases and in criminal cases as well. The courts themselves went on strike relatively recently for one month. During that month, thousands of Guatemalans had to remain in prison because their release orders were not signed. A strike on the part of the judicial system added to the internal conflict, and one could well imagine the situation in the country and the consequences.

The speaker requested the International Labour Organization to give more cooperation and assistance so that the country could continue to make progress as concerned the application of all the international Conventions to which Guatemala had become a party. This was really not the time for condemnation of the country, which was just emerging from a war and needed support and assistance to take the peace process to a successful conclusion.

The Workers' member of Spain welcomed the negotiations which were currently in hand to achieve peace in Guatemala. However, with respect to the trade unions' situation in Guatemala, very little had changed. Either there was a fear of trade union freedom and the right to associate or there was ignorance leading to intolerance of the trade union movement and murders of trade union activists. The Committee of Experts' report talked about restrictions on the freedom of trade unions which he considered to be absolutely unacceptable. Any society would be strengthened and would be organized better when the people who participated actively in society had the right to do so freely and could use their influence in the building of society.

The Workers' member of Ecuador deplored that this case had been treated on various occasions and that the successive Government representatives had limited themselves only to promises to implement changes, which were never fulfilled. He noted that the legal provisions criticized by the Committee of Experts had an historical context of repression and state terrorism and brazenly contradicted the Convention. The legislation was among the most backward in Latin America. He did not accept the excuse of the Government representative that the Congress could reject the Government's proposed amendments to the legislation. He believed that there was a lack of firm political will on the part of the Government to change the situation, which was under the influence of certain economic sectors impeding advancement. However, he commended the Government representative and the Employers' member of Guatemala for expressing their desire to work towards peace. This implied, in particular, respect for human and workers' rights, the creation of appropriate conditions for them, and the establishment of a tripartite commission, which would review and bring about amendments to the legislation. Lastly, the speaker stated that the conclusions of the Committee should be very firm and perfectly clear that next year the Government should present concrete changes to the legislation rather than simple promises.

The Government representative expressed thanks for the frankness of the comments and criticisms made. He noted, however, that in certain cases there had been some inaccuracies, and that the existence of political and social turmoil had not been taken into account. He indicated to the Workers' member of Spain that, for his Government, the value and importance of the trade union movement to solve the problems of Guatemala was quite clear. The speaker referred to an ILO official document which highlighted the serious consequences of war and the grave social and economic problems of the country, as well as the danger of social explosion. Peace, cooperation and consultation were three key elements to promote freedom of association and collective bargaining and to overcome the social problems of the country which could not be resolved overnight. With regard to the request for information from the organs of the ILO, the Government had never used the excuse that there was a lack of resources and that the delays were due to an administration in crisis: documents containing vast information had been submitted this week. With regard to the tripartite committee, it not only existed but had held a dozen meetings, thereby establishing itself as a new forum for dialogue which had already produced results. For example, top quality and high ranking Workers' and Employers' delegates for this Conference had been elected. With regard to the statement of the Workers' member of Denmark, the Government representative stressed that the recommendations of the Committee of Experts could be complied with when an atmosphere of peace had been established in the coming months, permitting further steps and enabling the tripartite committee to make proposals reached by consensus, which could be approved by a legislative authority. He expressed anguish that the Government was not able up to now to comply and gave its commitment to amend certain legislative decisions of the recent past. There would be consistent efforts in various areas for the promotion and protection of all human rights and in particular to protect peace and security, to fight against impunity and excessive privilege and to improve living conditions. Since the current problems were so wide-ranging, miracles could not have been achieved during the five months of office of the current Government. However, the initial results were on the horizon and in this respect, the Government representative thanked those speakers who had recognized that some things had been achieved. The Government representative enumerated three fundamental points: (1) what was occurring in the country was due to a deliberate plan of change and transformation towards in-depth democratization; (2) the situation dealt with building a national and international policy taking into account the country's real objectives, fully acknowledging the reality and the truth of what had occurred and what was happening, in order to find realistic and practical solutions; this truth also meant having shared responsibility and transcending differences to accomplish national reconstruction; (3) the situation concerned a global effort from society as well as the Government. All citizens should make efforts and be responsible for reconciliation and reconstruction. Opposition to negotiations was equivalent to supporting the continuation of war. The Government would do everything for its part to make further progress on the road to peace and to strengthen democracy. This policy reiterated the Government's commitment to honour its obligations to the ILO. The Government representative requested the ILO's technical assistance and presence in Guatemala.

The Workers' members stated that they supported the observations of the Employers' members that the legislation in Guatemala granted too much discretion to the Government to intervene with the exercise of the right to strike. However, they did not support the statements of the Employers' members on the essential nature of the agricultural sector during harvest. In this respect, they supported the point of view of the Committee of Experts and the Committee on Freedom of Association. The Workers' members also noted that the discussion had made it clear as to the seriousness of the problems and that there had been very few changes over a long period of time. In this connection, the Workers' members of the National Tripartite Commission which had participated in today's discussion, had highlighted the seriousness of the problems as well as the lack of political will. The Workers' members reiterated their prior statements on the conclusions which this Committee should adopt which should suggest to the Government that it seek the technical assistance of the Office to achieve progress.

The Employers' members noted that the report of the Committee on Freedom of Association on this case indicated, among other things, that, with respect to protection against anti-union discrimination, the legislative system was in conformity with Convention No. 98, and that was why in 1994, the Committee of Experts noted this as a case of progress. This demonstrated how it was possible to bring about improvements. Guatemala could do it here too, with respect to Convention No. 87, as there was still a lot of room for improvement in this case. The Employers' members observed that appropriate legislation did exist in many areas, but it was not being enforced and implemented in practice and that was where the problems often arose. For this reason, the current circumstances in the country which had been referred to several times today, were very serious. This lack of enforcement and implementation stood in the way of objectives being achieved. Thus, more than just good intentions were needed. What was needed was political determination to enforce change and to adopt new legislation to promote the principle of freedom of association. The Employers' members expressed the hope that the Government would make rapid efforts and speedy progress, and that detailed and specific reports would be provided. They also expressed the hope that technical assistance from the ILO could contribute to improvements being realised very soon.

The Government member of El Salvador stated that he fully supported the statement of the Employers' members that "peace was a prerequisite for positive development". Violence had existed in Guatemala for 30 years and it was essential that the ILO assist Guatemala and give it the benefit of the doubt. The speaker fully supported the Government of Guatemala with regard to the struggle for peace and noted that, when peace was achieved, the Government of Guatemala would be able to comply with its international obligations.

The Committee noted the detailed information supplied by the Government representative as well as the subsequent discussion. The Committee recalled that the Committee of Experts had been requesting for a very long time that the Government remedy the serious and numerous divergencies which existed between national law and practice, on the one hand, and the Convention on the other. The Committee noted that the Committee on Freedom of Association expressed its grave concern over the violations of fundamental human rights perpetrated against trade unionists and over the restriction on the freedom of trade union organizations, in cases examined as a follow-up to the direct contacts mission which took place in February 1995. The Committee observed that for several years, the Government had been providing assurances to the effect that the comments of the Committee of Experts would be examined with a view to ending the major violations. The Committee also noted that the Government had expressed its intention to submit these issues to a tripartite committee which had been set up recently. It noted, however, with regret, that no positive developments had been noted. The Committee expressed its deep concern, in the face of this situation and, given its serious nature, intended to re-examine this case next year. The Committee urged the Government to reform promptly legislation guaranteeing freedom of association and, in particular, to grant trade unions autonomy. The Committee also insisted that the authorities ensure fully, respect of essential civil rights and trade union rights. In this context, the Committee encouraged the Government to ask for support from the ILO's multidisciplinary team with a view to following up on the direct contacts mission. The Committee reiterated its firm hope that the Government would describe in its next report specific measures which had been taken to bring both its law and practice into conformity with the requirements of the Convention, which it had ratified more than 40 years ago. If this were not to be the case, the Committee would be obliged to consider other appropriate measures in noting the serious breaches of the Convention and would urge the Government to take the measures required to remedy this situation.

Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

The Government supplied the following information:

Article 2 of the Convention (Right of workers and employers to establish and join organizations). The Government indicated that the substantive and procedural conditions are contained in Title 6 of the Single Chapter of the Labour Code and in Government Agreement No. 639-93. There is no specific legal provision covering special categories of workers.

Article 3 (Right of workers' and employers' organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities). The law provides that trade unions are permanent associations of workers or of employers or of self-employed professionals or tradespersons established exclusively for the study, improvement and protection of their economic and social interests.

Article 4 (Dissolution and suspension of organizations by administrative authority). Dissolution is governed under sections 226-229 of the Labour Code.

Article 5 (Right of organizations to establish federations and confederations and to affiliate with international organizations). Section 233 of the Labour Code provides for the establishment of federations and confederations, and states that they can be at the national or regional level or according to branch of activity. This provision does not provide for membership of international organizations.

Article 6 (Rights of federations and confederations of workers' and employers' organizations). The establishment of federations and confederations is governed by the same provisions as those concerning the establishment of trade unions (Title 6, Single Chapter of the Labour Code).

Article 7 (Legal personality of workers' and employers' organizations and of their federations and confederations). This matter is dealt with under Title 6, Single Chapter of the Labour Code.

Article 8 (Exercise of the rights of workers, employers and their respective organizations). The requirements under this Article are taken into account particularly under the following constitutional provisions: articles 5, 24, 28, 29, 33, 34, 35, 138 and 139.

Article 9 (Trade union rights in the armed forces and the police). There is no relevant legislation in force. In accordance with custom and national practice, there is a presumption against the establishment of trade unions in the armed forces and police. With regard to the 1993 comments of the Committee of Experts, the Government will take action shortly to eliminate the divergencies indicated. However, the legislative function is exercised exclusively by Congress.

A Government representative referred to the written report provided by the Government. She expressed her appreciation and recognition for the work developed by the ILO, particularly by the present Committee. She indicated that she had appeared personally in order to demonstrate the Government's commitment to obtaining a solution to the difficulties which persisted in this matter, notwithstanding the efforts already realized. Guatemala had been affected by a terrible armed conflict during the last 35 years, as a consequence of the cold war and of internal conditions. The Government was seeking peace through the signing of accords to resolve differences. In this difficult process, Guatemala was being assisted by friendly nations and by the United Nations, which were acting as mediators in the process and which moreover were collaborating through MINUGUA in the monitoring of the global accord on human rights. During his recent visit to Guatemala, the President of Mexico recognized, on behalf of the friendly countries involved in the peace process (Norway, United States, Spain, Mexico, Colombia and Venezuela), the reconciliation work of the Government of the President of the Republic of Guatemala, and emphasized the importance of counting on the help of the international organizations and agencies to consolidate the desired peace in Guatemala. Additionally, the speaker described the importance of the presence of the ILO regional office in Central America which had permitted the improvement of relations with the ILO and at the same time enhanced the use of consultants and technicians to modernize the Ministry of Labour and make it more efficient.

Moreover, the Government emphasized the valuable work of the direct contacts missions to Guatemala, the results of which were appropriately recognized. The mission provided the opportunity for dialogue with the different sectors and evidenced the policy of the President of the Republic to open the country to collaboration with the international community in order to develop together solutions to the social problems of the country.

Concerning the observations of the Committee of Experts on the Application of Conventions and Recommendations, the speaker stated that Guatemala had already completed the reports which were referred to in the report of the Committee of Experts. Those reports had been delayed due to the lack of employees in the Ministry of Labour who were familiar with this specialized area. In the future, the Government would take measures to ensure that the reports arrived on time.

Concerning the observations formulated in relation to the Convention, the speaker stated that since the 1970s four attempts had been made to develop a new Labour Code in Guatemala, in place of the Labour Code of 1947, and that committees had been formed to develop each of these drafts, but without results. In December 1992, the modification of certain articles was achieved with the promulgation of Legislative Decree No. 64-92. Nevertheless, such modifications were minimal and in non-controversial areas, in comparison to the total reforms proposed. Regrettably, the propagation of a new Labour Code or reform of the existing Code always encountered opposition in a polarized society such as Guatemala. Consequently, it was difficult to complete accords, largely due to the persistence of internal armed conflicts. In spite of that, the modifications introduced in 1992 were elaborated with the participation of the workers' and employers' sectors, and of the Government. The Government believed that this exercise needed to be repeated. After the failed coup, which occurred in May 1993, a process to streamline the machinery of the State was initiated and in 1994 there was an excessive purge of Congress. The present delegates were due to turn over their posts in January 1996, making it difficult to adopt legislative reforms in the immediate future. None the less, the Ministry of Labour would convene a meeting with the employers' and workers' sectors to analyse the recommendations of the Committee of Experts. Such a situation should not be an obstacle for the Ministry of Labour and Social Security, which had already taken measures to promote freedom of association. In October 1993, only two months after assuming its duties, the Ministry sponsored various seminars and exercises intended to reduce the administrative steps required to obtain authorization for unions, and eradicated unnecessary formalities which had amounted to over 127 bureaucratic steps. The procedure was simplified significantly and eliminated the obligation to comply with the statutes propagated by the President of the Republic. Moreover, new reforms were introduced recently to facilitate a more straightforward procedure. This reform established a process requiring approximately 55 days to obtain legal recognition of a union (in accordance with the provisions of the revised Labour Code).

Lastly, the speaker reiterated the political will of the President of the Republic to continue taking measures and adopting actions to facilitate the existence of a culture of tolerance and to consolidate a lasting and firm peace through political accords based on dialogue and compromise. Only then would it be possible to dedicate all of the resources of the country, human as well as material, to solve the significant challenges which stem from underdevelopment, such as health, work, education and the modernization of production. Guatemala needed the understanding and help of the international community because it was easy to confuse the scarcity of resources with the absence of policies. Success must be obtained in cooperation, because peace was not only the absence of war.

The Workers' members appreciated the information provided by the Minister of Labour concerning the difficult political situation of the country and the initiatives taken to adopt a new Labour Code. It was recalled that the case had been discussed in 1991 and 1993, and that a special paragraph had been adopted firmly insisting that the Government send detailed information on measures taken to bring the legislation into conformity with the Convention; that it eliminate the discrepancies between legislation and practice on the one hand, and non-compliance with the Convention on the other; and that it take the necessary measures to prevent serious attacks on freedom of association, such as had occurred. At that time, the Government representative made promises to that effect. Nevertheless, the Committee of Experts did not receive the Government's report on time; and when it did report, the Government did not provide any new information but rather limited itself to expressing vague intentions to take steps to eliminate the aforementioned discrepancies. This was regrettable, given the grave problems which existed in the lack of conformity of the legislation with the Convention. Furthermore, the Committee on Freedom of Association, upon examining various cases, had identified the flagrant violations of freedom of association in practice: the difficulties unions faced in organizing and operating; dozens of cases of threats, aggression, assassinations, disappearances and dismissals of union activists. Paramilitary groups, police, and directors of national and international enterprises were clearly responsible, but were allowed to act with impunity. The sectors most affected were agriculture, forestry, and the free enterprise zones. Additionally, the employers promoted the creation of "solidarist associations" to weaken trade union organizations and undermine the right of collective bargaining (reference was made to the case of four enterprises in particular); and it was estimated that the members of such "solidarist associations" numbered in the thousands.

In addition, the Workers' members emphasized the gravity of the problems, which were highlighted in the report of the Committee of Experts, which made difficult the creation of unions, the free election of representatives (a worker must have been active in the enterprise and without a prior criminal record), and the exercise of the right to strike (the excessive requirements made impossible the lawful exercise of the right). Although in 1992 improvements had been made in the law, the formation of unions still tended to be a complicated process. The Committee should adopt firm conclusions, given the gravity of the situation and the fact that the Government had not completed the promises which it previously made to the present Committee. It was also necessary to: guarantee and protect the physical and moral integrity of union activists; increase the number of labour tribunals; reinforce labour inspections; facilitate the system for forming unions and eliminating administrative procedures; and collaborate in the development of a stable and efficient system of labour relations, where freedom of association was not violated by enterprises or the public authorities. The Workers' members hoped that in the near future tangible results could be obtained.

The Employers' members agreed with most of the points made by the Workers' members. This case had been dealt with a total of six times in the course of the 1980s, and then again in 1991 and 1993. This year, the Committee of Experts did not have any report from the Government and therefore had no option but to reiterate its previous observation, despite the fact that in 1993 the present Committee had concluded by asking urgently for a full report on any progress made. On that occasion, the Government had promised that things would change very soon, but these promises were linked to the appointment of the new President of Guatemala, who was to personally ensure the fulfilment of the changes.

In fact, not very much had changed since then. The comments made by the Government representative on the whole dealt with the general political situation and the problems the country had encountered over the past 30 years. It referred to some changes which had occurred but which were not the object of observations of the Committee of Experts. The Workers' members had already listed the main points of concern: supervision of trade union activities; the nationality requirement for exercising union office; the requirement that workers be active in the enterprise in order to exercise union office; and the requirement that workers demonstrate that they did not have a criminal record. These demands certainly could not be reconciled with the terms of Convention No. 87, so here too the Employers' members supported the call for change, which was made in 1991, in 1993, and repeated now.

The Employers' members clarified that it did not support the demands made in connection with the right to strike because they could not be derived from the terms of the Convention and contemplated the right to strike in a very specific way which the Employers' members could not accept. But as for all other points, the Employers' members agreed fully with the Committee of Experts.

So what had become of the promises which were given in 1993? The present Committee said at the time that it hoped that the new political leadership would introduce changes for the better because the new President had the reputation of being somebody who was a great defender of human rights. But the Committee of Experts had not even received on time a detailed report from the Government and the information received later, which had been provided to this Committee, was not very impressive and did not provide any concrete information, and again contained a vague promise to act in the future. The Government representative stated that it was extremely difficult to achieve any change in the short term. This was less than what had been promised in 1993. Undoubtedly, the Government had good intentions, but it was evident that change came about very slowly. The Committee should adopt very firm conclusions, as the Workers' member had demanded, and should demand a report on any measures taken. The Employers' members indicated that they reserved the right to request examination of this case next year.

The Workers' member of Guatemala declared that the statement made by the Workers' members fitted reality and that violations of the Convention at the level of the legislation had existed since 1952, the date of Guatemala's ratification. Furthermore, the Government had not submitted a report on time to the Committee of Experts, and when it did (in May 1995) it did not consult the workers' organizations. The criticisms of the Committee of Experts concerned restrictions on freedom of association, on the right to strike, and on collective bargaining, all of which existed in legislation as well as in practice. The speaker referred to various recent cases of attempts on the lives of union activists, and cases which illustrated the ineffectiveness of the labour courts concerning problems of collective bargaining. The Committee of Experts should continue to examine these problems on an ongoing basis. This would be a significant help in the actual peace process, which required respect for economic, social and political rights, to be able to solve the causes of the armed conflict.

The Workers' member of Colombia expressed solidarity with the Guatemalan union movement and observed the painful situation which the workers endured. It was disturbing that the Government had not sent its report on time, and that it had sought to excuse itself by invoking the search for peace. Peace required respect for the lives of workers and union activists, and respect for other rights pertaining to the organization of workers. The protection of the right of unions to organize, which existed in Guatemalan legislation, was more formal than real. It should be observed that the Government had failed to act firmly when enterprises proceeded with massive anti-union dismissals, or when obscure forces repeatedly assassinated or kidnapped activists. The speaker referred to specific cases of assassinations and kidnapping of union activists. The speaker concurred with the statements of the Workers' members and firmly requested that the Committee formulate stronger declarations. Lastly, the speaker requested that the ILO continue to follow all of the issues related to freedom of association.

The Workers' member of the United States stated that the observation of the Committee of Experts concerning Guatemala appeared relatively bloodless in its legalisms, but the facts in Guatemala were anything but bloodless. There existed a horrible record of the role of police, paramilitary and death squads in what the archdiocese in Guatemala City had described as the "systematic practice" of repression against the trade union movement. What amendments had been made to the 1947 Labour Code had rarely been enforced so that the protection for organizing that appeared in print was either ignored or misapplied. There existed a practice of repeated and horrific reprisals. For example, since the present Committee last met, the leader Edi Conde was abducted by four armed men in police uniform and interrogated, beaten and threatened with death unless he left the country. The AFL-CIO, with the Postal Telegraph and Telephone International, helped the Secretary-General of the Energy Workers' Federation of Guatemala to go to El Salvador to seek refuge and safety. In March, the Finance Secretary of the union at the "PCA Maquiladora" enterprise was cruelly murdered. UNSITRAGUA alone had lost eight leaders and members since mid-1994. When the Coca-Cola bottling plant or other employers claimed that the workers lacked the majority necessary to form a union, the present Committee should not focus only on the fact that the Labour Code required a two-thirds majority for a strike, in violation of the Convention, but also on the existing atmosphere of violence and intimidation so extreme that it did not require a cynic to say that many killings of union members prevented unions from reaching the required quota for registration. In light of the lack of freedom of association, it was time for this Committee to firmly insist that Guatemala bring its legislation and its practice into conformity with the Convention.

The Workers' member of Iceland, speaking on behalf of the Nordic Workers' members, stressed that everyday reports were received on acts of violence aimed at disturbing the functions of trade unions in Guatemala. While this was going on, it was confirmed time after time that no action was being taken by the authorities in order to combat the paramilitary groups, such as the "Jaguar Justiciero", which were responsible for these acts of violence. Guatemala had ratified a total of 67 Conventions, 62 of which were supposed to be in force, including Conventions No. 87 and No. 98. While reading the list of Guatemalan trade unionists who had lost their lives in the last few years as a result of their struggle to better the condition of workers in Guatemala, and observing that nothing was being done by the authorities to prevent it, it was almost impossible to see that the Government of Guatemala had meant a word of what it said by ratifying the human rights Conventions. Freedom of association had little meaning under circumstances such as this. Ratifying Conventions without taking action to implement them in practice was an abuse of the ILO and a disgrace. However, the speaker noted that the representation of Guatemalan workers at the present Committee this year included an independent trade union organization, and expressed the hope that this was a sign of better times.

The Workers' member of Panama condemned the situation in Guatemala relating to labour and union rights; the difficulty of maintaining unions under such conditions, and, above all, the crimes committed against union activists. The speaker indicated that the workers' organizations from Panama had visited the Embassy of Guatemala to demand respect for the right to life of the workers, as well as the protection of other rights. The ILO should continue to examine all of these issues to ensure that the Government fulfilled the commitments which resulted from the ratification of the Convention.

The Government representative took note of the statements which were made and regretted the cases of violence referred to by various speakers. Many of those cases were being examined by the direct contacts mission which visited the country, and would be examined by the Committee on Freedom of Association, whose conclusions the Government awaited. The speaker indicated that the Government had already submitted all of the reports required by the Committee of Experts. She reiterated the Government's wish to convene a meeting with workers and employers to examine the recommendations of the Committee of Experts concerning the Convention, with the objective of bringing the legislation into compliance with the Convention as soon as possible.

The Committee noted the written communication and oral explanations provided by the Government representative, as well as the discussion that took place thereafter. The Committee regretted that, in spite of the discussions before the present Committee in 1993 and the assurances given by the Government at that time, the Government's report was not received in time to be examined by the Committee of Experts. The Committee of Experts and the present Committee had, for a number of years, urged the Government to eliminate the discrepancies between national legislation and practice and the Convention, particularly regarding the need to lift the limitations imposed on the right of trade unions to organize their activities and to elect their representatives. The Committee emphasized that these matters had already been discussed many times, had been examined by direct contacts missions, and had been the subject of a special paragraph in a previous report. Consequently, the Committee urged the Government to adopt in the very near future the necessary measures, in legislation and in practice, to ensure that this fundamental Convention, ratified more than 40 years ago, was applied in letter and spirit. It called upon the Government to report in detail to the Committee of Experts on the actual progress made in terms of specific steps taken to bring both legislation and practice into conformity with the requirements of the Convention.

Individual Case (CAS) - Discussion: 1993, Publication: 80th ILC session (1993)

A Government representative recalled the institutional events of May 1993 which had led to a change of government. The resignation of the Minister of Labour and Social Welfare prevented a reply being sent in time to the observation made by the Committee of Experts. The new President of the Republic was a defender of civil liberties and his election was made possible with the general agreement of all the political tendencies and with the support of the workers and the employers. He assured the Committee that the Government's comments on the Committee of Experts' observations would be submitted to the Office.

The Workers' members welcomed the information concerning the recent political developments and expressed the hope that the consolidation of the democratic system would allow for favourable developments to take place in the social domain. This Committee had already dealt with this case many times. It had been the subject of a special paragraph in its 1985 report and had also been discussed at length in 1991. While noting certain improvements, the observation of the Committee of Experts showed that the more important problems remained and listed the discrepancies that existed. Moreover, the observation pointed out that new problems had appeared with respect to the Convention resulting from new provisions of the Labour Code imposing new obligations, such as the sworn statement that was required from members of the executive committee of a trade union to the effect that they had no criminal record. A serious situation of violence and insecurity persisted in the country where trade unionists were threatened with murder or abduction, or just disappeared, with the participation of the army and death squads. In the context of a difficult transition towards democracy, this Committee had to remain firm in its demand for total and unconditional respect of freedom of association and had to ask the new Government to give effect quickly to the observations of the Committee of Experts by taking the measures that were necessary.

The Employers' members pointed out that although the legislation dating from 1992 had given rise to certain problems, as pointed out by the Committee of Experts in their report, there had been positive developments. Each discrepancy between the legislation and the Convention had been listed individually by the Experts. The Employers' members agreed completely with most of these points on which they felt some amendment to the legislation was required. However, they did not agree with the Committee of Experts' interpretation of the precise requirements with regard to the right to strike, which in their view could not be construed from the Convention in such specific terms. With regard to the recent political events, although it had been a very turbulent period in Guatemala, there was a new President who had said that he stood for the respect of human rights. They trusted that a comprehensive report would be sent by the Government in the future which would contain information on changes in line with the request made by the Committee of Experts.

The Workers' member of Guatemala indicated that the violations of freedom of association had only deteriorated until the events of May 1993 but that he hoped that the situation would improve in this domain, and in particular that this Convention would be fully respected. A tripartite agreement had allowed for the adoption in November 1992 of a law introducing major amendments to the Labour Code on several points. However, these reforms would be insufficient if the political will and decision to understand, to respect and to ensure respect of national legislation as well as of international labour standards on freedom of association was lacking.

The Employers' member of Guatemala emphasized the importance of the reform of the Labour Code described by the previous speaker. These amendments were the result of a tripartite dialogue aimed at adapting the provisions of the national legislation to the Convention. These amendments were very far-reaching, which recognized the impossibility of dismissing all the members of a union in the process of being established, reduced the number of workers required to establish a trade union and streamlined the procedures pertaining to the establishment of a trade union. With regard to the restrictions raised in the Committee of Experts' observation, it would be appropriate to ignore them given that most of them did not exist in practice. The provisions of the Labour Code mentioned by the Committee of Experts were not applied and there were no means of ensuring their respect. The Courts had not rendered any decision on the basis of these provisions of the Labour Code which remained a dead letter. At that time the situation Guatemala was very different from that which prevailed a decade ago. Important progress had been made which favoured dialogue and good tripartite understanding.

The Workers' member of Germany also welcomed the new political conditions which prevailed in the country but stated that he could not agree with the Employers' member of Guatemala who considered that there were no difficulties. With regard to this Convention in particular, the Committee on Freedom of Association in a recent report had expressed its serious concern and had clearly shown how the different provisions were not respected by the Government.

The Workers' member of Guatemala, although not denying the merits of the amendments introduced to the Labour Code in November 1992, once again stated that its application had to be ensured. Agricultural workers who wished to establish organizations of rural workers were accused of being subversive or guerrillas. In June and October 1992, secretary-generals of trade unions had "accidents", of which one was fatal. This meant that attention had to be paid to the manner in which trade union rights could be exercised in practice in the future.

The Government representative stated that she had taken due note of the observations of the speakers and assured this Committee that the next report due on the application of the Convention would contain all the comments that her Government would wish to formulate on this matter.

The Committee noted the information supplied by the Government representative on the institutional situation in her country. The Committee expressed the hope that it would soon be possible to eliminate the discrepancies between national legislation and practice on the one hand, and the Convention on the other hand, a matter which had already been discussed many times and which had been the subject of special paragraphs in previous reports. The Committee strongly urged the Government to adopt in the near future the necessary measures so as to bring to an end the very serious breaches of freedom of association that had been taking place in that country. The Committee requested the Government to supply in its next report detailed information on all measures taken or envisaged in this domain with a view to bringing law and practice into full conformity with the Convention, in accordance with the comments made by the Committee of Experts.

Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

A Government representative of Guatemala stated that his Government received with interest the observation made by the Committee of Experts on the application of Convention No. 87. He noted, however, that certain clarifications were necessary in the following general catego ries: (a) questions which are considered to be resolved by the new Constitution of the Republic leaving only the need to derogate these provisions by the creation of new laws as requested by the Committee of Experts; (b) the provisions which were already expressly repealed; and (c) a specific case where the Constitution is in contradiction with the Convention. The speaker pointed out that efforts had already been made, with the assistance of the ILO, to update the consolidated labour legislation and thus bring it into conformity with international labour standards. As a result of these efforts, the previous Government presented the Congress of the Republic with a draft of a substantive and a procedural Labour Code, as well as a basic Labour and Social Security Act. However, the legislative process discontinued due to the fact that various sectors of society had declared themselves against these draft texts. Nevertheless, the new Government had begun and implemented a Social Covenant as a general expression of tripartism, never before seen in the country. Within the framework of this Social Covenant, the Government was taking steps towards the institutionalisation and harmonisation of the country's labour legislation with international labour Conventions. The speaker pointed out that, taking into consideration the political circumstances which complicated the process of promulgation of a new labour legislation, the Minister of Labour and Welfare was promoting, on the basis of tripartite consultations, the approval of a certain number of transitional reform measures to the Labour Code. This would be done in a way so as to incorporate international labour standards in the law. In this way, these amendments, together with the draft codes based upon the tripartite consultation process under the Social Covenant, were part of a global strategy for improving the legislation. The speaker gave assurances that his Government would send all the documentation pertinent to this case to the Committee of Experts and the Minister of Labour and Welfare would see to it that the discrepencies which had been pointed out and which were not contrary to the Constitution of the Republic would be eliminated by the labour legislation once the Social Covenant was concluded. The Government representative recalled that the present Labour Code, which is now being revised, dated back to 1948 and the Constitution of the Republic entered into force in January of 1986. Many of the observations made by the Committee of Experts would be resolved by the Constitution. He concluded by stating that ILO assistance would be welcome to conclude the current reform of the labour law in the most technical and efficient way possible. This assistance was being discussed with the ILO.

The Workers' members noted the information provided by the Government concerning the changes made since the last time this case was discussed. They recalled the discrepancies noted in the Committee of Experts' report between the legislation and the provisions of the Convention. In this respect, they noted that there were six essential problems: (1) the strict supervision of trade union activities by the Government; (2) the dissolution of trade unions that have taken part in matters concerning electoral or party politics; (3) the limitation on the eligibility for trade union office to Guatemalan nationals only; (4) the requirement of a two-thirds majority vote for the calling of a strike; (5) the prohibition of strikes by agricultural workers at harvest time by workers in enterprises or services in which the Government considered that a suspension of their work would seriously affect the national economy (they recalled in this regard that the Committee of Experts had determined that the right to strike could only be limited for essential services, i.e. those services in which a strike would endanger the life, personal safety or health of whole or part of the population); and (6) the heavy prison sentences for those who carry out acts intended to paralyse or distub the functioning of enterprises contributing to the development of the national economy with a view to jeopardising national production. They noted that the Government representative's statement had demonstrated that more progress was made than reflected in the Committee of Experts' report as apparently the draft Labour Code was presently being discussed in the legislature. Finally, they requested a clarification from the Government representative concerning the pursuance of tripartite consultations to resolve these problems.

The Employers' members recalled that this case had been discussed several times in the early 1980s and that three years had passed since it was last discussed. They generally associated themselves with the comments made by the Workers' members, but declared their reservation concerning the right to strike as they were of the opinion that the details concerning this right could not be deduced from Convention No. 87. In their opinion, this case also demostrated that the formula defining essential services was very narrow and did not take into consideration the particularities of a given case. They wondered whether, in a country which depends on agricultural products, it would not be useful to consider harvesting as an essential service. In spite of this particular point, they note that there were still a number of contradictions between the legislation and the provisions of the Convention. They noted the Government representative's indication that amendments to the legislation and in particular to the Labour Code were being elaborated. They recommended that the Government be asked to accelerate this process and to provide these texts as soon as possible so that the Committee of Experts could supervise the application of the Convention.

The Government representative of Guatemala welcomed the interest reflected in this type of concrete questioning. He pointed out that, as concerned the strict supervision of trade union activities by the Government, the participation in political parties of trade union leaders, the problems concerning eligibility of non-nationals for trade union office, the majority necessary to call a strike, the prohibition of strikes by agricultural workers and strike in essential services - these elements and circumstances were taken into account in the Constitution of 1986. The restrictive standards bearing upon freedom of association had been repealed or derogated by this later law. The Government would make an effort to ensure that the process followed for reviewing the legislation would bring the country standards into full conformity with the Convention. The Government respected certain trade union rights which were discretionary, such as the election of trade union officers. As concerned the sanctions against those who paralyse the national economy, he pointed out that the Constitution was very clear about the types of conduct which were illegal and the minimum rights guaranteed to the worker, including the right to strike. As regards the question concerning whether an agricultural country, such as Guatemala, could restrict the right to strike of agricultural workers, he pointed out that his country adopted the universally recognised definition of the international bodies on essential services which only limited the right when it could endanger the health, safety and welfare of the population. He reitered that in his country there was the conviction that the legislation should be changed so as to be in compliance with international labour Conventions, but that these changes should be made in a spirit of tripartism and consensus in conformity with the well-being of all sectors of the country.

The Workers' members thanked the Government for the clarifications given to the questions raised and requested that the new legislation be sent to the Office for review as soon as possible.

The Committee took note of the detailed information communicated by the Government representative and the discussion which had taken place in the Committee. It recalled that the Committee of Experts had been asking the Government for a number of years to remedy the serious divergencies which exist between national law and practice and the Convention. Taking note that the draft Labour Code, which was to take into account the observations made by the Committee of Experts, was in the process of being adopted by the Congress of the Republic, the Committee expressed the firm hope that the Government would report in its next report on the concrete measures taken to bring its law and practice into conformity with the requirements of the Convention which it had ratified almost 40 years ago.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

Sections 256, 292, 294 and 414 of the Penal Code. The Committee recalls that in its previous comments: (i) it examined allegations by the Guatemalan Trade Union, Indigenous and Rural Movement (MSICG) asserting that sections 256, 292, 294 and 414 of the Penal Code facilitated the criminalization of peaceful labour protests by means of an excessively broad and subjective characterization of common offences (such as the usurpation of buildings or the paralysation of means of transport); (ii) it noted the Government’s reply indicating that the penal provisions referred to were focussed on safeguarding the whole of the population, and it should be borne in mind that the mere fact of legally regulating illicit conduct does not entail the suppression of labour or trade union rights by the State; and (iii) on the basis of the foregoing, it requested the Government to provide specific information on any instances in which any of the sections of the Penal Code referred to above had been applied in practice in the case of labour protests.

The Committee notes the Government’s reply, which refers to information provided by the Special Human Rights Section of the Office of the Public Prosecutor. The Special Section indicates that none of the cases submitted by the MSICG contain elements related to labour protests. Clarifying that its request was not confined to cases submitted by a specific trade union, the Committee once again requests the Government to provide specific information on any instances in which any of the above-mentioned sections of the Penal Code have been applied to any form of labour protests in practice.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

The Committee notes the observations of the International Organisation of Employers (IOE), received on 1 September 2023, relating to the discussions held in the Conference Committee on the Application of Standards (the Conference Committee) on the application of the Convention by Guatemala. The Committee also notes the observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), received on 1 September 2023, which relate to matters examined in the present comment. The Committee further notes the observations of the International Trade Union Confederation (ITUC), on the one hand, and of the Autonomous Popular Trade Union Movement, Global Unions of Guatemala, on the other, received on 27 and 29 September 2023, respectively, which also refer to matters examined in the present comment. The Committee notes the Government’s replies to the corresponding observations.

Follow-up to the conclusions of the Conference Committee on the Application of Standards (International Labour Conference, 111th Session, June 2023)

The Committee notes the discussion held in June 2023 in the Conference Committee on the application of the Convention by Guatemala. The Committee notes that the Conference Committee, after noting with deep concern the persistence of allegations of murders of trade unionists and other acts of anti-union violence, as well as the general situation of impunity that prevails in the country, urged the Government, in consultation with the social partners, to: take immediate measures to address the general situation of violence and intimidation, put an end to acts of violence and the threat thereof against trade union leaders and members; fully implement the road map adopted on 17 October 2013 without further delay, as well as any recommendations prepared by the ILO; investigate without delay all acts and threats of violence against trade union leaders and members to determine responsibilities, punish the perpetrators and identify the root causes of violence; provide rapid and effective protection to all trade union leaders and members who are under threat by increasing the budget for such programmes and ensure that protected individuals do not personally have to bear any costs arising from those schemes; adopt without delay the agreed amendments to eliminate legislative obstacles to the full exercise of freedom of association and develop legislation to allow for the formation of trade unions at the sectoral level; ensure the efficient registration of trade unions, including the implementation of the electronic tool designed by the ILO; and increase the visibility of the awareness-raising campaign on freedom of association in the media and ensure that there is no stigmatization of trade unions, their leaders and collective agreements.

Follow-up by the Governing Body of the progress achieved in the implementation of the ILO technical cooperation programme “ Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards ”

The Committee notes that for the third and final year, the Governing Body followed up at its session in October-November 2023 the action taken by the Office in the context of the ILO technical cooperation programme “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards (GB/349/INS/10(Rev.1)). The Committee recalls that the purpose of the action is to support the implementation of the road map on freedom of association adopted in 2013 by the Government of Guatemala. The Committee notes that on this occasion special attention was paid to the implementation of the priority actions identified by the joint mission undertaken by the ILO, IOE and ITUC in September 2022.

Presentation of a complaint under article 26 of the ILO Constitution

The Committee notes that, at its 349th Session, the Governing Body declared receivable a complaint made under article 26 of the ILO Constitution by various delegates to the 111th Session of the International Labour Conference alleging non-observance by Guatemala of this Convention and of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the content of which will be examined by the Governing Body at its session in June 2024 (GB/349/INS/19/2).

Trade union rights and civil liberties

The Committee regrets to note that it has been examining since 2005 allegations of serious acts of violence against trade union leaders and members, including numerous murders, and the related situation of impunity. In this regard, the Committee notes the examination by the Committee on Freedom of Association at its session in March 2023 of Case No. 2609 in relation to numerous murders and other acts of violence against members of the trade union movement.

The Committee notes the information provided by the Government concerning the status of the investigations and court proceedings relating to the murders of 98 members of the trade union movement between 2004 and 2022, according to which, up to now: (i) in 26 cases there have been a total of 37 sentences handed down (26 convictions, ten acquittals and one security and corrective measure); (ii) the criminal prosecutions in seven cases were terminated due to the deaths of the persons accused; (iii) in seven cases, arrest warrants have been issued and are being served; (iv) in one case, the hearings have begun, one is at an intermediary stage and one is at the stage of the public hearings; (v) ten cases are under investigation; and (vi) 46 cases have been shelved, in accordance with section 327 of the Code of Criminal Procedure, due to the material impossibility of identifying the perpetrators of the murders, although it is still possible that the cases will be reopened. The Committee notes that the Government adds that: (i) of the sentences, 15 were imposed on the perpetrators of the murders, three on the instigators and ten on both the perpetrators and the instigators; (ii) 14 of the 98 victims referred to were not members of the trade union movement, with two of those murders resulting in sentences being handed down; (iii) in none of the sentences referred to was an anti-union motive identified; (iv) since 1 January 2023, four new convictions have been handed down, and five acquittals; and (vi) the most recent procedures show a significant reduction in the period between the commission of the crime and the sentence being handed down. The Committee also notes the Government’s indication that the funding and resources available to the Office of the Public Prosecutor in general and to the Office of the Special Prosecutor for Crimes against Judicial Officials and Trade Unionists in particular have been increased substantially and that the results achieved show that there is no impunity in the country. The Government indicates in this regard that: (i) following its doubling between 2021 and 2022, the annual budget of the Office of the Special Prosecutor rose from US$1,288,252 in 2022 to US$1,539,774.51 in 2023; and (ii) while in 2017 there were only 64 municipal public prosecutors, the Office of the Public Prosecutor now has a presence in a total of 340 municipalities in the country. The Committee further notes the emphasis placed by the Government on regular contacts between the Office of the Public Prosecutor and the National Tripartite Committee on Labour Relations and Freedom of Association (CNTRLLS) concerning progress in the related investigations, particularly through personal appearances by the Prosecutor-General.

The Committee further notes the information provided by the Government on the security measures adopted for members of the trade union movement who are at risk, according to which: (i) between 1 June 2022 and 15 January 2023, the Ministry of the Interior received 97 individual or collective applications for risk analyses (of which 58 were from the Office of the Public Prosecutor), with 128 protection measures being granted; (ii) the risk analyses are carried out immediately, within one week; (iii) the Ministry of the Interior is updating with workers’ representatives the Ministerial Decision on the unit for the analysis of attacks against trade union leaders and members to ensure that it is in line with the needs raised by the unions; and (iv) there are six canteens in the capital so that the meals of police officers are not at the expense of protected trade union members.

The Committee also notes that the ITUC regrets the murder of over 100 members of the trade union movement and deplores the fact that the Government attributes their murders to the general situation of violence in the country, thereby contributing to the persistence of the situation of impunity. The Committee also notes that the national trade union confederations: (i) hope that, in the case of the murder of Tomás Ochoa, Secretary-General of the Sitrabremen union, the Office of the Public Prosecutor will challenge, on the basis of the existing evidence, the decision by the court of first instance to find that the alleged instigators were not connected to the crime; and (ii) expect progress in the investigation of the murder in 2022 of Hugo Eduardo Gamero González, the disputes secretary of the SINEPORC union. The Committee also notes with deepconcern the references, during the discussion of the ILO technical cooperation programme for Guatemala in the Governing Body in October-November 2023, to the murder of Ms Doris Lisseth Aldana Calderón, leader of the SITRABI union, which occurred on 4 October 2023. The Committee notes in this regard the Government’s indications concerning the investigations carried out by the Office of the Public Prosecutor.

In light of the foregoing, while taking due note of the significant action that the Government is continuing to take, the results reported and the difficulties involved in shedding light on older murders, the Committee deeplyregrets to note that in the case of the great majority of the many murders of members of the trade union movement that have been reported there have not been any convictions and that in an even more limited number of cases the instigators of the murders have been identified and punished.

In this context, in the same way as the Committee on Freedom of Association in Case No. 2609, the Committee notes with deep concern the indication that 46 older cases of the murder of members of the trade union movement in which it has not been possible to identify the potential perpetrators have been shelved. Although it recognizes the particular difficulties involved in shedding light on older murder cases, the Committee emphasizes the importance, in cases involving anti-trade union violence, of investigations achieving specific results with reliable findings concerning the crimes committed, the motives for the crimes and those responsible so that the corresponding sanctions can be applied and action taken to avoid their recurrence in future. While welcoming the continuing increase in the budget allocated to the Office of the Special Prosecutor for Crimes against Judicial Officials and Trade Unionists and the regular contacts between the Office of the Public Prosecutor and the CNTRLLS on the subject of anti-union violence, the Committee once again urges the Government to continue taking and intensifying as a matter of urgency all the necessary measures to: (i) investigate all acts of violence against trade union leaders and members, with the objective of determining responsibilities and punishing both the perpetrators and instigators of these acts, taking fully into consideration in the investigations the trade union activities of the victims; and (ii) provide prompt and effective protection for all trade union leaders and members in situations of risk so as to prevent any further acts of anti-union violence. In relation to the specific action required in this regard, the Committee refers to the recommendations made by the Committee on Freedom of Association in the context of Case No. 2609. The Committee requests the Government to continue providing all relevant information in this respect.

Articles 2 and 3 of the Convention. The Committee recalls that for many years it has been requesting the Government to take measures to:

• amend section 215(c) of the Labour Code, which requires a membership of “50 per cent plus one” of the workers in the sector to establish a sectoral trade union;
• amend sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity to be eligible for election as a trade union leader;
• amend section 241 of the Labour Code, under the terms of which strikes have to be called by a majority of the workers and not by a majority of those casting votes;
• amend section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996, which provides for the possibility of imposing compulsory arbitration in non-essential services and establishes other obstacles to the right to strike;
• amend sections 390(2) and 430 of the Penal Code and Decree No. 7186, which establish labour, civil and criminal penalties in the event of a strike by public officials or workers in certain enterprises;
• ensure that the various categories of public sector workers (hired under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

In its previous comment, the Committee noted the new impetus given to the process of legislative reform by the joint mission by the ILO, IOE and ITUC in September 2022. In particular, the Committee noted that: (i) following the mission, the President of the Republic had submitted to the Congress of the Republic a Bill containing the texts which had received tripartite approval in March 2018 and September 2022 (Bill No. 6162) on the requirements for election to trade union office, compulsory arbitration in services that are not essential and other obstacles to the right to strike, the sanctions in the event of strikes set out in various legislative provisions and the application of the guarantees of the Convention to various categories of public workers; and (ii) on the basis of the guiding principles agreed in August 2018, bipartite and tripartite discussions with support from the Office would be held for the development of an agreed text of proposed reforms on sectoral unions and the conditions for strike ballots. The Committee regrets to note that, according to the information provided by the Government and the social partners, Bill No. 6162 has still not been adopted and that social dialogue has not been resumed on sectoral unions and the conditions for strike ballots. In this regard, the Committee once again emphasizes the importance of amending section 215(c) of the Labour Code, which establishes membership requirements for the establishment of sectoral unions that are contrary to Article 2 of the Convention. In a context that is characterized, on the one hand, by a large number of small enterprises and, on the other, legislation that requires a minimum of 20 workers to establish a union, the excessive membership requirements established for the creation of sectoral unions has the effect of excluding a large number of workers from being able to exercise their right to organize. In light of the foregoing, the Committee once again urges the Government to, in consultation with the social partners, take the necessary measures to bring the national legislation into conformity with the Convention. The Committee firmly expects to be able to note tangible progress in this regardin the near future and recalls the availability of the Office to provide the necessary technical assistance.

Application of the Convention in practice

Registration of trade unions. In its previous comments, the Committee noted the persistent differences between the indications provided by the Government and the trade unions concerning the process of the registration of unions by the labour administration. The Committee took specific note of the allegations by unions concerning the role reported to be attributed to the employer in the registration process. The Committee also notes the Government’s indication that: (i) 2,579 unions are registered (749 in the public sector, 901 in the private sector and 929 in the self-employed sector); (ii) 34 applications for the registration of unions were received in 2022, and 25 organizations were registered; and (iii) 16 applications for the registration of unions were received between 1 January and 6 July 2023, with eight organizations being registered.

The Committee notes the further indications by the Government that: (i) the law does not require the labour administration to inform the employer when applications for registration are received; (ii) the authorities in Guatemala respect the principle of non-interference by employers in the establishment and operation of unions as set out in Article 2 of Convention No. 98; (iii) at the time of its publication in the Official Journal, information on the registration of a union becomes public and, in accordance with section 275 of the Labour Code, the decisions of the Ministry of Labour and Social Welfare can be challenged through administrative appeals; and (iv) in 2021 and 2022, nine decisions to register trade unions were challenged through appeals lodged by employers, with three appeals being set aside, one rejected as being out of time and five awaiting a decision.

The Committee notes the indication by the ITUC that trade unions continue to complain of challenges by employers against the registration of unions, the denial of registration and delays by the labour administration in updating lists of trade union members.

The Committee takes due note of these various elements. The Committee requests the Government to continue providing statistical information on the registration of trade unions, including the grounds for refusals of registration and to maintain an open dialogue with trade union confederations on administrative practice in this respect. With reference to appeals by employers against registration decisions, the Committee requests the Government to indicate: (i) the grounds given for the appeals; (ii) whether the filing of an appeal has the effect of suspending registration; and (iii) whether the employer has access to the identity of the members of the union that has just been registered.

Campaign on freedom of association. The Committee notes the Government’s indication that: (i) at the beginning of 2023, materials were disseminated on freedom of association in 35 municipalities in the country; (ii) an awareness-raising campaign on freedom of association continued to be carried out through media with broad circulation, reaching around 7,500 readers of the Official Journal, 66,876 users of social networks and 432,000 readers of a broadly read outlet. The Committee notes these initiatives with interest and encourages the Government to: (i) continue the awareness-raising campaign in media with broad circulation; and (ii) take measures for the awareness-raising campaign to reach sectors characterized by a very low unionization rate, such as agriculture and the maquila. The Committee requests the Government to provide information in this regard.

Noting with concern the persistence of serious violations of the Convention, the Committee urges the Government, with the technical assistance of the Office, to intensify its efforts to overcome the legislative and practical difficulties examined in the present comment.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

On the basis of allegations of the Guatemalan Trade Union, Indigenous and Peasant Movement (MSICG), which asserted that sections 256, 292, 294 and 414 of the Penal Code facilitated the criminalization of peaceful labour protests by means of an excessively broad and subjective characterization of common offences (such as usurpation of buildings or paralysation of means of transport), the Committee asked the Government to provide information on the possible application in practice of the above-mentioned provisions of the Penal Code to events occurring in the context of the exercise of freedom of association, in particular the right to strike.

In this regard, the Committee notes that the Government forwards the reply of the Public Prosecutor’s Office, which indicates that: (i) the mere fact of holding a labour protest or demonstration of any kind in Guatemala does not constitute a criminal act; on the contrary, this is a right guaranteed by article 33 of the Political Constitution of the Republic of Guatemala, which establishes the right of assembly and demonstration, and the Public Prosecutor’s Office guarantees the observance of this article of the Constitution; (ii) the common offences covered by sections 256, 292, 294 and 414 of the Penal Code have a similar wording to that found in other Penal Codes in a number of Central American countries (Costa Rica, El Salvador, Honduras); and (iii) the aforementioned sections focus on safeguarding the whole population, and it should be borne in mind that the mere fact of legally regulating illicit conduct does not entail the suppression of labour or trade union rights by the State. While duly noting this information, the Committee requests the Government to provide specific information on instances when any of the above-mentioned articles of the Penal Code may have been applied to labour protests in practice.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the joint observations of the Guatemalan Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, and the observations of the International Trade Union Confederation (ITUC), received on 31 August and 1 September 2022 respectively, relating to matters examined in the present comment. The Committee also notes the Government’s replies to these observations.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 110th Session, May–June 2022)

The Committee notes the discussion which took place in June 2022 in the Conference Committee on the Application of Standards (Conference Committee) concerning the application of the Convention by Guatemala. The Committee observes that the Conference Committee, after deploring and deeply regretting the persistent acts of general violence and the violence against trade union leaders and members, including murders and physical aggression, and the culture of impunity that prevails in the country, called on the Government to take steps to: (i) investigate without delay all acts and threats of violence against trade union leaders and members with a view to identifying and understanding the root causes of violence, taking into account their trade union activities as a motive, determining responsibilities and punishing the perpetrators; (ii) provide rapid and effective protection to all trade union leaders and members who are under threat by increasing the budget for such programmes and ensure that protected individuals do not personally have to bear any costs arising from those schemes; (iii) eliminate the various legislative obstacles to the free establishment of trade union organizations and, in consultation with the social partners, resolve the handling of registration applications; (iv) ensure that judicial decisions of reinstatement in employment following anti-union dismissals are enforced without delay; (v) increase the visibility of the awareness-raising campaign on freedom of association in the media and ensure that there is no stigmatization of trade unions, their leaders and collective agreements; (vi) bring national legislation into conformity with the Convention, in consultation with the social partners; and (vii) redouble efforts to fully implement the road map adopted on 17 October 2013, in consultation with the social partners.

Lastly, the Committee invited the Government to avail itself of technical assistance from the Office to give full effect to these conclusions and asked it to submit a report on the application of the Convention to the Committee of Experts by 1 September 2022.

Follow-up by the Governing Body of the progress achieved in the implementation of the technical cooperation programme “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards”

The Committee recalls that, pursuant to its decision of November 2018 (decision GB.334/INS/9) to close the procedure concerning the complaint alleging non-observance of the Convention by Guatemala made under article 26 of the ILO Constitution, the Governing Body asked the Office in November 2020 to report annually on the ILO technical cooperation programme “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards” for its three-year duration (decision GB.340/INS/10).

During its October-November 2022 meeting, the Governing Body noted the joint mission of the ILO, the International Organisation of Employers (IOE) and the ITUC, undertaken in September 2022 to follow up on the technical cooperation provided by the ILO in relation to the implementation of the road map approved in 2013 by the Government, in order to discuss the matters raised in the complaint made under article 26 of the ILO Constitution. The Committee notes that the mission and the members of the National Tripartite Committee on Labour Relations and Freedom of Association (CNTRLLS) jointly identified a series of priority actions to give new impetus to the implementation of the road map.

Trade union rights and civil liberties. The Committee notes with regret that since 2005 it has been examining allegations of serious acts of violence against trade union leaders and members, including numerous murders, and the situation of impunity in this respect. The Committee notes the information provided by the Government on the status of investigations and judicial proceedings relating to the murder of 97 members of the trade union movement, indicating that: (i) 29 verdicts have so far been handed down, comprising 22 convictions (in relation to 19 murders, with three cases resulting in two convictions each), six acquittals, and one security and correctional measure; (ii) seven cases have been assigned dates for public hearings and trials; (iii) in one new case, the final report was presented to the judicial authority by the Public Prosecutor’s Office; (iv) in three cases, trial proceedings are being opened; (v) criminal proceedings were dropped in seven cases in which the accused persons had died; and (vi) the other cases are still at the investigation stage. The Committee also notes the Government’s indication that: (i) given that several new cases now have dates for public hearings and trials, five new judgments are expected by the end of the first half of 2023; (ii) six cases involving the deaths of trade union leaders and members which occurred in 2020 have seen significant progress in terms of investigations and proceedings; and (iii) the Public Prosecutor’s Office has launched investigations into two cases of death threats against trade union leaders.

The Committee further notes the information provided by the Government on the security measures adopted for members of the trade union movement in situations of risk, namely: (i) personal security measures are in place for two union leaders; and (ii) of the 46 requests for protection for trade union members received by the Ministry of the Interior from 1 January to 27 July 2022, one has given rise to personal security measures, 39 have generated perimeter security measures, and six are in the analysis phase. The Government also refers to Ministerial Decision No. 288-2022 issued by the Interior Ministry, which reinstates the unit for the analysis of attacks against trade union leaders and members, a forum in which the Interior Ministry and the unions can exchange information on at-risk members of the trade union movement.

The Committee further notes the Government’s reference to a substantial increase in the budgets allocated to: (i) the Office of the Special Prosecutor for Crimes against Judicial Officials and Trade Unionists, which increased from 543,960 to 1,288,252 US dollars (USD) in 2022; and (ii) the Personal Protection and Security Division at the Interior Ministry, which increased from USD 876,616 in 2020 to USD 1,239,120 in 2022. Lastly, the Government reports on the eight meetings held in 2022 by the CNTRLLS Subcommittee on the Implementation of the Road Map concerning the subject of anti-union violence.

The Committee also notes with deep concern the observations of the national and international trade union organizations denouncing: (i) the murder on 8 August 2022 of Hugo Eduardo Gamero Gonzalez, Disputes Secretary of the Santo Tomás de Castilla National Port Enterprise Workers’ Union (SINEPORC); (ii) the perpetration of numerous other acts of anti-union violence such as death threats; (iii) the persistence of the situation of impunity; and (iv) the inadequate protection measures provided by the public authorities.

While noting the Government’s replies regarding the investigations into these acts, the Committee once again recalls that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists, and that it is for governments to ensure that this principle is respected.

In light of the foregoing, while duly noting the continuing actions by the Government, the results reported and the difficulty involved in clearing up long-standing murder cases, the Committee once again expresses its deep concern at the allegations of a new case of murder and other acts of anti-union violence committed in 2022 and the persistence of a high degree of impunity. Indeed, the Committee notes with regret that the vast majority of the many murders of trade unionists recorded have still not resulted in convictions and that there is still no specific information on identification and punishment of the instigators of these crimes. While duly noting the significant increase in the budget allocated to the Office of the Special Prosecutor for Crimes against Judicial Officials and Trade Unionists reported by the Government, the Committee once again urges the Government to continue taking and intensifying as a matter of urgency all necessary measures to: (i) investigate all acts of violence against trade union leaders and members, with the aim of determining responsibility and punishing both the perpetrators and instigators of these acts, taking the victims’ trade union activities fully into consideration in the investigations; and (ii) provide prompt and effective protection for all trade union leaders and members in situations of risk so as to prevent any further acts of anti-union violence. The Committee requests the Government to continue providing all relevant information in this respect.

Articles 2 and 3 of the Convention. The Committee recalls that for many years it has been requesting the Government to take measures to:

• -amend section 215(c) of the Labour Code, which requires a membership of “50 per cent plus one” of the workers in the sector to establish a sectoral trade union;
• -amend sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity to be eligible for election as a trade union leader;
• -amend section 241 of the Labour Code, under the terms of which strikes have to be called by a majority of the workers and not by a majority of those casting votes;
• -amend section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996, which provides for the possibility of imposing compulsory arbitration in non-essential services and establishes other obstacles to the right to strike;
• -amend sections 390(2) and 430 of the Penal Code and Decree No. 71-86, which establish labour, civil and criminal penalties in the event of a strike by public officials or workers in certain enterprises; and
• -ensure that the various categories of public sector workers (hired under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

The Committee recalls that in its previous comments it noted: (i) the tripartite agreement concluded in March 2018 on the amendments sought in four of the six points indicated above (relating to the requirements for election as a trade union leader, compulsory arbitration in non-essential services and other obstacles to the right to strike, penalties applicable in the event of a strike established by various legislative provisions, and the application of the guarantees of the Convention to various categories of public sector workers); and the immediate submission of this agreement to the National Congress; (ii) the tripartite agreement concluded in August 2018 on the principles that should guide reforms on the requirements for the establishment and operation of sectoral unions and on the conditions for strike ballots.

In its comments further to the closure by the Governing Body of the complaint made under article 26 of the ILO Constitution, the Committee expressed deep concern at the lack of progress on legislative reforms, noting with regret, firstly, that the content of the tripartite agreement of March 2018 had still not been incorporated in the legislation and, secondly, that no progress had been made on work to revise the legislation relating to aspects covered by the agreement on principles of August 2018. With regard to this last point, the Committee had previously noted with concern the indications by the trade unions that the combination of (i) the fact that it is impossible to create sectoral unions as a result of the requirements of section 215(c), and (ii) the fact that it is impossible in small enterprises, which account for almost all companies in Guatemala, to assemble the 20 workers required by section 216 of the Labour Code for the establishment of a union, meant that the vast majority of workers in the country did not have access to the right to join a union.

The Committee notes the Government’s reference to two tripartite meetings held in 2021 and one held in July 2022 to incorporate the agreements reached in March 2018 into a Bill without there having been the necessary input from the workers to move ahead with the tripartite discussion process. The Committee also notes that the national trade union federations claim that it is impossible to move forward on the legislative reforms requested by the Committee owing to the unwillingness of the Ministry of Labour and Social Welfare (Ministry of Labour) to impinge on the different political groups represented in the National Congress, and because of this the tripartite consensus achieved has lost its way in the legislative body.

The Committee also notes the following points that emerge from the discussion in the Governing Body in November 2022 that: (i) on 21 September 2022, in the presence of the ILO-IOE-ITUC joint mission, the Subcommittee on Legislation with the extended bureau of the CNTRLLS endorsed the texts approved in March 2018 and agreed that the executive authority would submit a Bill to Congress in the very near future; (ii) by a letter of 27 October 2022, the President of the Republic brought a Bill before the National Congress containing the texts which had received tripartite approval in March 2018 and September 2022; and (iii) the priority actions identified by the mission in conjunction with the CNTRLLS provide for: lobbying by the national tripartite constituents with a view to the adoption of the aforementioned Bill; bipartite and tripartite discussions facilitated by the Office to have a consensual text for proposed reforms on sectoral trade unions and the conditions for strike ballots ready for the Governing Body session of November 2023. Encouraged by the specific actions agreed upon during the ILO-IOE-ITUC joint mission, the Committee firmly hopes that the Government will very soon be in a position to report both the adoption of the Bill brought before the National Congress on 27 October 2022 and tangible progress in the revision of the legislation relating to sectoral trade unions and the conditions for strike ballots.

Application of the Convention in practice

Registration of trade unions. The Committee notes the Government’s indication that: (i) in the whole of 2021, the Ministry of Labour registered 57 trade unions, out of 58 applications received; (ii) from 1 January to 15 August 2022, a total of 17 trade unions were registered, out of 18 applications received; and (iii) steps have been taken to contract a notifying officer to accelerate registration formalities, and assistance has been sought from the Ministry of Labour of Argentina to share good practices in this respect. The Committee also notes the observations of the trade union federations, which claim that: (i) arbitrary practices and the imposition of inappropriate formalities by the Ministry of Labour persist; (ii) the Ministry of Labour reportedly gives 48 hours to employers to bring legal action against any publication of the registration of a trade union in the Official Journal. The Committee notes the Government’s indication regarding this latter point that, under the case law of the Constitutional Court, the Ministry of Labour has the obligation to examine claims presented to it, including those relating to the registration of unions. Lastly, the Committee notes that the priority actions identified by the ILO-IOE-ITUC joint mission include the implementation, with support from the Office, of software for the registration of trade unions. In light of the foregoing, the Committee requests the Government to continue providing statistical information on registration applications and actual trade union registrations. It further requests the Government to specify whether the legislation requires the labour administration to inform the employer when it receives a request for registration by a trade union and to indicate the number of challenges against registration brought by employers, the duration of their examination and the decisions taken for their resolution.

Awareness-raising campaign on freedom of association and collective bargaining. The Committee notes the Government’s reference to the meeting of the Subcommittee on the Implementation of the Road Map held on 2 August 2022 at which: (i) the Subcommittee gave its approval to the communication models submitted by the ILO; and (ii) the Ministry of Labour indicated that it had set aside funds to display posters in the municipalities most affected by disputes in the country. The Committee also notes the Government’s indication that the national trade union federations, for their part, criticize the lack of any progress in this respect. Lastly, the Committee notes that, in the context of the priority actions identified by the ILO-IOE-ITUC joint mission and the CNTRLLS, the following possibilities were raised: (i) that the Government might launch a similar initiative on freedom of association to the one recently implemented by the Ministry of Labour with a campaign on the prevention of child labour; (ii) that the Coordinating Committee for Agricultural, Commercial, Industrial and Financial Associations, in connection with the human rights policy developed by the employers, might devise and disseminate awareness-raising and information materials among its members on the employers’ role regarding the exercise of freedom of association; and (iii) that the campaign might include promoting good practices with respect to collective labour relations (for example, through an annual award from the CNTRLLS). In light of the foregoing, the Committee expresses the firm hope that the Government will be in a position in the very near future to report specific progress on the implementation of the awareness-raising campaign.

While expressing its concern at the persistence in law and practice of serious violations of the Convention, the Committee welcomes the fresh impetus given to the implementation of the road map through priority actions identified by the ILO-IOE-ITUC joint mission and by the members of the CNTRLLS. The Committee emphasizes that it is vitally important that the expectations generated by the identification of such actions translate into tangible progress in the application of the Convention within the specified time frames. The Committee requests the Government to provide information on the various points highlighted in the present comment.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 2023.]

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes that the Committee on Freedom of Association has referred to it the legislative aspects of Cases Nos. 2967 and 3089 (393rd Report of the Committee, March 2021), concerning allegations of incompatibility of a number of provisions of the Criminal Code and the Labour Code with the Convention. The Committee notes that most of the provisions challenged in Cases Nos. 2967 and 3089 have already been examined by the Committee in the framework of its monitoring of the application of the Convention. The Committee notes, however, that the allegations also refer to several additional provisions of the Criminal Code (sections 256, 292, 294 and 414) which, according to the Guatemalan Union, Indigenous and Peasant Movement would facilitate the criminalization of peaceful labour protests by means of an excessively broad and subjective characterization of common offences (such as usurpation of buildings or paralysation of means of transport). The Committee requests the Government to provide information on the possible application in practice of the above-mentioned provisions of the Criminal Code to events occurring in the context of the exercise of freedom of association, in particular the right to strike.

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the International Trade Union Confederation (ITUC) and the joint observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, both received on 1 September 2021, relating to matters examined in the present comment. The Committee also notes the Government’s replies to these observations. The Committee further notes the Government’s comments on the matters raised in 2020 by the national trade union federations on the impact of the COVID-19 pandemic on the application of the Convention.

Follow-up by the Governing Body of the progress achieved in the implementation of the technical cooperation programme “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards”

The Committee recalls that: (i) on the basis of the Governing Body’s decision adopted in November 2018 (Decision GB.334/INS/9) to close the procedure of the complaint made under article 26 of the ILO Constitution alleging the violation of the Convention by the State of Guatemala, the Governing Body requested the Office to draw up a technical cooperation programme to promote progress in the application of the Road Map adopted in 2013 within the framework of the follow-up to the complaint; and (ii) at its 340th Session (October–November 2020), the Government Body welcomed the adoption of the technical cooperation programme, “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards” and requested the Office to report annually on its implementation at its October–November sessions for the duration of the three-year programme (Decision GB.340/INS/10).

The Committee notes the discussions at the 343rd Session of the Governing Body (October–November 2021) on the implementation of the technical cooperation programme and the decision of the Governing Body to note the information provided by the Office on this subject (Decision GB.343/INS/7)

Trade union rights and civil liberties. The Committee regrets to note that it has been examining since 2005 allegations of serious acts of violence against trade union leaders and members, including numerous murders and the related situation of impunity. The Committee also notes that the Committee on Freedom of Association examined at its session in October 2021 Case No. 2609, which brings together denunciations of acts of anti-union violence, including a very high number of murders of members of the trade union movement between 2004 and 2021 (see 396th Report, October 2021, Case No. 2609, paragraphs 307–348).

The Committee notes the information provided by the Government on the situation with regard to the investigations and prosecutions relating to the murders of 96 members of the trade union movement and its indications that: (i) 28 verdicts have so far been handed down, including 22 convictions (in relation to 19 murders, with three cases giving rise to two convictions each), five charges have been set aside and one security and remedial measure has been adopted; (ii) seven arrest warrants are still pending; (iii) three cases are at the stage of public hearings and trials; (iv) the criminal prosecutions lapsed in six cases in which the accused died; and (v) the other cases are still at the investigation stage. The Committee also notes the Government’s indication that progress was reported in 2020 in 13 cases that are under investigation. The Committee also notes the information provided by the Government on the security measures taken for members of the trade union movement who are at risk, in the context of which: (i) 55 risk analyses were carried out for members of the trade union movement during the course of 2020, with one personal security measure being provided and 47 perimeter security measures; and (ii) between 1 June and 31 August 2021, 19 risk analyses were carried out for members of the trade union movement, with 15 perimeter security measures being adopted.

The Committee also notes that the Government refers to its replies provided in the context of Case No. 2609. The Committee takes due note in this regard of the detailed information provided by the Government on the active role played by the National Tripartite Committee on Labour Relations and Freedom of Association (hereinafter the National Tripartite Committee) and its Subcommittee on the Implementation of the Road Map in monitoring the response of the criminal justice system to acts of anti-union violence. The Committee takes special note in this respect of the high-level meetings held by the National Tripartite Committee with the Office of the Public Prosecutor and the plenary of the Supreme Court, and that the Subcommittee on the Implementation of the Road Map specifically requested the competent authorities to ensure: (i) the exhaustive investigation of all cases of murders of members of the trade union movement, with emphasis on a series of 36 cases of special relevance; (ii) the reactivation of the Technical Trade Union Forum in the Office of the Public Prosecutor and the Standing Technical Trade Union Forum for Comprehensive Protection in the Ministry of the Interior; (iii) the facilitation by the judicial authorities of current prosecutions for murders of members of the trade union movement; (iv) the assignment of a criminal analysis unit to the Special Prosecutor’s Unit for Crimes against Trade Unionists; and (v) the strengthening of collaboration between the Office of the Public Prosecutor and the Ministry of the Interior in cases of requests for protection measures by members of the trade union movement.

The Committee takes due note of this information. It also observes that, despite the difficulties caused by the COVID-19 pandemic, two new convictions were handed down in 2021 in relation to murders of members of the trade union movement. At the same time, the Committee notes with deep concern : (i) the Government’s indications that the Office of the Public Prosecutor recorded six new cases of murders of members of the trade union movement in 2020; and (ii) the observations of the national trade union confederations and the ITUC denouncing the murder on 7 May 2021 of Ms Cinthia del Carmen Pineda Estrada, a trade union leader of the Education Workers’ Union of Guatemala (STEG), as well as other serious acts of anti-union violence committed in 2020 and 2021. While noting the Government’s replies in relation to the investigations carried out into these crimes, the Committee once again recalls that trade union rights can only be exercised in a climate free from violence, intimidation and threats of any kind against trade unionists and that it is for governments to ensure that this principle is respected.

In light of the above, while taking due note of the action that the Government is continuing to take, the results reported and the difficulties involved in shedding light on the oldest murder cases, the Committee once again expresses deep concern at the allegations of further murders and other acts of anti-union violence committed in 2021 and the persistence of a high level of impunity, as there have still been no convictions for the great majority of the numerous recorded murders of members of the trade union movement. Emphasizing the importance of the initiatives called for by the Subcommittee on the Implementation of the Road Map, the Committee once again urges the Government to continue to take and intensify as a matter of urgency all the necessary measures to: (i) investigate all acts of violence against trade union leaders and members with a view to determining responsibilities and punishing the perpetrators and instigators of these acts, taking the trade union activities of the victims fully into account in the investigations; and (ii) provide prompt and effective protection for all trade union leaders and members who are at risk in order to prevent any further acts of anti-union violence. With reference to the specific action required in this regard, the Committee refers to the recommendations made by the Committee on Freedom of Association in Case No. 2609.

Legislative issues

Articles 2 and 3 of the Convention. The Committee recalls that for many years it has been requesting the Government to take measures to:

• -amend section 215(c) of the Labour Code, which requires a membership of “50 per cent plus one” of the workers in the sector to establish a sectoral trade union;
• -amend sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity to be eligible for election as a trade union leader;
• -amend section 241 of the Labour Code, under the terms of which strikes have to be called by a majority of the workers and not by a majority of those casting votes;
• -amend section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996, which provides for the possibility of imposing compulsory arbitration in non-essential services and establishes other obstacles to the right to strike;
• -amend sections 390(2) and 430 of the Penal Code and Decree No. 71-86, which establish labour, civil and criminal penalties in the event of a strike by public officials or workers in certain enterprises; and
• -ensure that the various categories of public sector workers (hired under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

The Committee also recalls that in its comments in 2018, 2019 and 2020 it noted that: (i) the tripartite agreement concluded in February 2018 on the amendments sought in four of the six points indicated above (relating to the requirements to be elected as a trade union leader, compulsory arbitration in non-essential services, penalties applicable in the event of a strike, and the application of the guarantees of the Convention to various categories of public sector workers); (ii) the submission on 7 March 2019 of this tripartite agreement to the Labour Commission of the Congress of the Republic so that the examination of Bill No. 5199 could be set aside, as it did not have the support of the social partners, and instead a legislative reform could be adopted based on tripartite agreement; and (iii) the tripartite agreement concluded in August 2018 on the principles that should guide reforms on two of the other points in the above list relating, on the one hand, to the requirements for the establishment and operation of sectoral unions and, on the other, the conditions for strike ballots.

The Committee notes that in its latest report the Government confines itself to: (i) indicating that the legislative amendments requested by the Committee form part of the work plan of the National Tripartite Committee and its legislative subcommittee; (ii) recalling once again that Bill No. 5199, designed to respond to the Committee’s observations, had been submitted to the Congress of the Republic on 27 October 2016, but that the social partners called for it to be set aside and the discussion was to continue with a view to reaching consensus on the reforms to be adopted; (iii) indicating that, at the meeting on 22 April 2021 of the National Tripartite Committee, the Government submitted a draft legislative initiative based on the tripartite agreements on the four points referred to above covered by a full tripartite agreement, which had been submitted to the Congress of the Republic on 7 March 2018, with a full discussion on the reasoning given for the draft legislative initiative.

While noting the information provided by the Government, the Committee observes with deep concern the lack of specific progress in bringing the legislation into conformity with the Convention, despite the repeated requests by the various ILO supervisory bodies and the Governing Body and the serious impact of the legislative provisions concerned on the effective exercise of freedom of association. In this regard, the Committee recalls that in its previous comments it noted with concern the indications by the trade union organizations that the combination of: (i) the fact that it is impossible to create sectoral unions as a result of the requirements of section 215(c); and (ii) that it is impossible in small enterprises, which account for almost all companies in Guatemala, to assemble the 20 workers required by section 216 of the Labour Code for the establishment of a union, mean that the great majority of workers in the country do not have access to the right to join unions. While emphasizing the importance of reforms of labour legislation being the subject of consultation with the social partners and, in so far as possible, giving rise to tripartite consensus, the Committee emphasizes that, in the last resort, it is the responsibility of the Government to take the necessary decisions to ensure compliance with the international commitments assumed by the State through the ratification of international labour Conventions. The Committee therefore urges the Government to take the necessary measures without delay to bring the national legislation into conformity with the Convention. The Committee hopes to receive specific information in the near future on the tangible progress achieved in this regard.

Application of the Convention in practice

Registration of trade unions. In its previous comments, the Committee once again invited the Government and the trade unions to take major steps forward in their dialogue on facilitating the process of trade union registration. The Committee notes the Government’s indication that it is strengthening the public register of trade unions of the General Directorate of Labour through the development of an information technology tool that will facilitate the processes. The Committee also notes from document GB.343/INS/7, submitted to the Governing Body at its session in October-November 2021, that: (i) the Office is providing assistance for the project for the strengthening of the public register of trade unions; (ii) according to the information provided by the Government, of the 52 applications for registration received in 2020 by the Ministry of Labour and Social Welfare, 28 resulted in registrations, 16 were rejected and eight are still being processed; and (iii) of the 39 applications received in 2021 between 1 January and 16 September, 12 resulted in registrations, nine were rejected and 18 are still being processed. Noting from the information provided by the Government that more than one third of the applications for registration of trade unions reviewed in the past two years have been rejected and a significant number of applications are still being processed several months after their submission, the Committee once again encourages the Government, with the technical assistance of the Office and in dialogue with the national representative organizations, to make progress in facilitating the process of trade union registration.

Awareness-raising campaign on freedom of association and collective bargaining. The Committee recalls that this campaign is one of the commitments made by the Government through the Road Map adopted in 2013. In its previous comments, the Committee urged the Government, with the support of the social partners and the technical cooperation programme prepared by the Office, to take all the necessary measures to ensure that the awareness-raising campaign is given real visibility in the national mass media. The Committee notes the Government’s indication that it is awaiting the approval of the Multiannual Operations Programme of the European Union programme on support for decent employment in Guatemala, which includes specific action to address the subjects of freedom of association and collective bargaining within the framework of the corresponding ILO Conventions. While noting that the action taken in response to the emergencies resulting from the COVID-19 pandemic may have made it difficult to take action in this regard, the Committee regrets the lack of specific initiatives for the dissemination of the awareness-raising campaign. The Committee therefore once again urges the Government to take measures for the effective dissemination of the awareness-raising campaign on freedom of association and collective bargaining in the national mass media.

Regretting, despite the existence of the National Tripartite Committee and the technical assistance provided by the Office, the absence of specific progress over the past three years, the Committee urges the Government to take all the necessary measures to resolve, in the near future, the serious violations of the Convention that have been noted for many years.

The Committee is raising other matters in a request addressed directly to the Government.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in the light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and from the social partners this year, as well as the information at its disposal in 2019.

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019 and on 16 September 2020. The Committee also notes the joint observations submitted by the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala on 16 October 2020. The Committee takes note of the Government's replies to these observations which refer to matters examined in the present comment and to complaints of violations of the Convention in practice.

The Committee also notes the observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), supported by the International Organisation of Employers (IOE), received on 1 September 2019, also referring to matters examined by the Committee in the present comment.

COVID-19 pandemic and application of the Convention. The Committee notes that the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala allege that: (i) as a result of the prohibition of public meetings due to the health emergency, a number of trade union organizations are without leadership, as the time-limit for the holding of their executive committees has elapsed; (ii) accordingly, they have repeatedly requested the Ministry of Labour to issue a Ministerial Order extending the period of the executive committees beyond their expiry date to the end of the crisis; (iii) in the absence of action by the Government, the confederations sent the Minister of Labour a draft Ministerial Order, proposing that the Ministry availed itself of the Office’s assistance; (iv) on 1 October 2020, at the end of the state of emergency, when it became again possible to hold public meetings, they asked the Ministry of Labour for guidance for the trade unions that were without leadership, but obtained no reply; and (v) the limbo created by Government inaction rendered the workers and their organizations defenceless, in a context characterised by many anti-union acts. Emphasizing that distancing measures following the pandemic should not affect the capacity of trade unions to represent their members and noting that the Government does not refer to this issue in its comments on the observations of the national trade union confederations, the Commission requests the Government to enter into a dialogue with the trade unions concerned as soon as possible in order to resolve the difficulties raised. The Committee requests the Government to provide its comments on these matters.

Follow-up to the decision adopted by the Governing Body at its 334th Session concerning the closure of the complaint submitted under article 26 of the ILO Constitution alleging non-observance of the Convention

The Committee notes the discussions which took place during the 340th Session (October–November 2020) of the Governing Body concerning additional measures taken to ensure a sustained and comprehensive implementation of the road map adopted in 2013 as part of the follow-up to the complaint submitted in 2012 under article 26 of the ILO Constitution alleging non-observance of the Convention.

The Committee notes that the Governing Body:

(i) welcomed the ILO technical cooperation programme “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards” and called for funding for its implementation; and

(ii) requested the Office to report annually on its implementation at its October–November sessions for the duration of the three-year programme.

Trade union rights and civil liberties

The Committee notes with regret that since 2005 it has been examining, in the same way as the Committee on Freedom of Association, allegations of serious acts of violence against trade union leaders and members, including numerous murders, and the related situation of impunity. The Committee notes in this regard: (i) the information provided by the Government in its reports from 2019 and 2020 on the application of the Convention; and (ii) the information contained in the reports presented to the Governing Body in September 2019 by the Government, on the one hand, and by the Guatemalan Autonomous Trade Union and People’s Movement and the Global Unions of Guatemala, on the other. The Committee further notes, from the Government’s supplementary report of 2020, that the Government submits the document, formulated in a tripartite manner by the National Tripartite Committee on Labour Affairs and Freedom of Association (hereinunder the National Tripartite Committee), which was communicated to the Governing Body in September 2020, and which sets out the position of each of the tripartite constituents vis-à-vis the state of application of the 2013 road map.

The Committee also notes that the Committee on Freedom of Association, at its meeting in October 2019, examined Case No. 2609, which groups together the complaints of acts of anti-union violence, including 90 murders of members of the trade union movement recorded between 2004 and 2018 (see 391st Report, October 2019, Case No. 2609, paragraphs 270–302).

The Committee notes that the Government provides information on the institutional initiatives taken to counter anti-union violence. The Committee notes that the Government indicates specifically that: (i) with the aim of reducing the backlog and providing prompt and effective justice, in 2019 the Public Prosecutor established a unit for the investigation of crimes against judicial officials and trade unionists; (ii) the unit has a directors’ office, a unit for crimes against judicial officials and a unit for crimes against trade unionists, and had at its disposal for the 2020 financial year a budget of Q4,918,412.00 (approximately US$618,500); (iii) with a view to preventing delay in the handling of cases, the Office of the Public Prosecutor has introduced an integrated case management system; (iv) the National Tripartite Committee held a meeting in February 2020 with the Chief Public Prosecutor during which, on the basis of the recommendations of the Committee on Freedom of Association, the Prosecutor was presented with a request to expedite investigations into 35 murder cases; (v) on 6 August 2020, the Government and the social partners approved the technical cooperation programme prepared by the Office and the action to be taken to strengthen the State’s response to anti-union violence; and (vi) the National Tripartite Committee’s plan of work for 2020-2021 provides for high level meetings with the Supreme Court, the Public Prosecutor and the Ministry of the Interior to seek solutions to the anti-union violence. The Committee further notes that, during the discussion at the 340th Session of the Governing Body, the Government referred to a joint statement of 22 October 2020 by the Ministry of Labour, the Ministry of the Interior and the Public Prosecutor's Office on anti-union violence, in which the above-mentioned institutions committed themselves to : (i) agile inter-institutional coordination to guarantee the fundamental rights of trade union leaders and trade unionists; (ii) to seek to increase and strengthen institutional capacities to achieve this objective; and (iii) to energise the spaces for dialogue with representatives of labour rights defenders and with the National Tripartite Commission.

The Committee also notes the updated data provided by the Government regarding investigations into the 90 murders of trade unionists, according to which: (i) 24 judgments have been delivered (19 convictions and 5 acquittals), and one security and corrective measure; (ii) two cases are currently at the public oral hearing stage; (iii) arrest warrants have been issued in seven cases; (iv) six cases have been dismissed, and (v) during the course of 2020, progress has been made with respect to investigations into 13 murders. The Government also states that the investigations led by the Public Prosecutor’s Office are currently subject to the preventive measures adopted to address the COVID-19 pandemic.

The Committee further notes from the Government’s report that between 1 January 2019 and July 2020, 109 requests for protection measures were received for members of the trade union movement and that, with respect to those: (i) 86 perimeter security measures have been established for a period of six months, three personal security measures for the same length of time, and 12 measures consisting of providing a telephone number, in view of the low level of risk identified; and (ii) eight requests remain pending; and (iii) a total of 5 members of the trade union movement now have personal security measures in place, as compared to two in 2019.

The Committee also notes from the CACIF’s contribution to the National Tripartite Committee’s document that the CACIF: (i) refers to the growing difficulty of clarifying events that occurred many years earlier; proposes concentrating the investigation on cases where it is possible to establish the facts and convict the perpetrators; and (iii) states that preventive and protective actions in respect of freedom of association should be reviewed by the National Tripartite Committee to assess the appropriateness of amending one or more or its components.

The Committee further notes from the ITUC’s observations from 2019 and 2020 that it reports: (i) the murder in November 2018 of the leader of the Union of Secondary-Level Distance Education Workers of Santa Rosa; (ii) the murders of six trade union leaders between 2 February and 2 June 2020: and (iii) a number of attempted murders and threats against prominent national and local trade union leaders. The Committee also notes that the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, at the same time as alleging regression in the Ministry of the Interior’s protection policy, report the murders of 12 trade union leaders and members between 1 January and 22 September 2020, as well as three attempted murders. The Committee notes the statement by the trade union confederations that a total of more than 100 trade union members have now been murdered. The Committee notes with deep concern these and other reports of numerous acts of anti-union violence and especially the growing number of murders reported over the past year. The Committee recalls once more in this regard that trade union rights can only be exercised in a climate free of violence, pressure or threats of any kind against trade unionists, and it is incumbent on governments to guarantee respect for this principle.

In that regard, in light of the information provided by the Government and the social partners, the Committee observes that: (i) although three additional convictions of perpetrators of murders committed in 2017 and 2018 were handed down between July 2019 and September 2020, the vast majority of the numerous reported murders of members of the trade union movement remain unpunished; and (ii) although the number of members of the trade union movement accorded protection measures has increased from 2 to 5 in the past year, such measures remain very infrequent in view of the high recorded numbers of murders and other acts of anti-union violence against members of the trade union movement.

In view of the above, while duly noting the action still being taken by the Government, the results reported and the difficulty involved in resolving the oldest murder cases, the Committee can only express its deep concern at the persistence of a high level of impunity, and at the growing number of murders of members of the trade union movement reported last year. The Committee therefore once again urges the Government to continue to take and to intensify, as a matter of urgency, all necessary and time-bound measures: (i) to investigate all acts of violence against trade union leaders and members with a view to promptly determining responsibilities and punishing the perpetrators and instigators of such acts, taking the trade union activities of the victims fully into consideration in the investigations; and (ii) to provide prompt and effective protection for all trade union leaders and members who are at risk. With regard to the specific action required to achieve those objectives, the Committee refers to the recommendations made by the Committee on Freedom of Association in the context of Case No. 2609.

Legislative issues

Articles 2 and 3 of the Convention. The Committee recalls that for many years it has been asking the Government to take measures to amend the following legislative provisions:

• -section 215(c) of the Labour Code, which requires a membership of “50 per cent plus one” of the workers in the sector to establish a sector trade union (in its previous comment, the Committee noted with concern the trade unions’ indication that the combination of the impossibility of establishing sector trade unions under the requirements of section 215(c) and the impossibility in small enterprises, which account for almost all Guatemalan companies, to meet the Labour Code requirement of 20 workers for the establishment of a trade union, meant that most of the country’s workers were unable to exercise the right to join a trade union);
• -sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity to be eligible for election as a trade union leader;
• -section 241 of the Labour Code, under the terms of which, in order to be lawful, strikes have to be called by a majority of the workers and not by a majority of those casting votes;
• -section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996, which provides for the possibility of imposing compulsory arbitration in non-essential services and establishes other obstacles to the right to strike; and
• -sections 390(2) and 430 of the Penal Code and Decree No. 71-86, which establish labour, civil and criminal penalties in the event of a strike by public officials or workers in certain enterprises.

The Committee also recalls that for many years it has been asking the Government to take measures to ensure that various categories of public sector workers (hired under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

In its comment adopted in 2018, the Committee noted with interest the tripartite agreements concluded in February and August 2018 relating to various aspects of the reforms needed to bring the legislation into line with the Convention. The Committee expressed the hope that, on the basis of the above, the Government would soon be in a position to report the adoption, requested for many years, of legislation which fully complies with the obligations contained in the Convention.

The Committee notes that the Government recalls that: (i) it previously submitted Bill No. 5199 with the purpose of bringing the legislation into line with the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); and (ii) it asked the President of the National Congress Working Committee to defer the discussion in plenary of the Congress of Bill No. 5199 in order to facilitate a tripartite consensus on the above-mentioned reforms; consequently, since August 2017, the National Congress has been awaiting the consensus of the social partners. The Committee notes that the Government, in its supplementary report, also refers to: (i) the important legislative approach of the technical cooperation programme prepared by the Office and supported by the country's tripartite constituents; and (ii) the support currently provided by a consultant hired by the ILO to the National Tripartite Committee by means of a study to update the Guatemalan labour legislation in the perspective of the reforms requested by this Committee in relation to the present Convention, which will lead to meetings with the tripartite constituents in November 2020.

The Committee notes that the CACIF reiterates its commitment to the implementation of the road map and its legislative reform component. While supporting the stance adopted by the Employers’ group in the various ILO bodies, maintaining that the right to strike is neither contained in nor derived from any ILO Convention, the CACIF indicates its continued willingness to work on a tripartite basis to adopt a reform proposal that satisfies national interests in the matter.

The Committee also notes that the Guatemalan Autonomous Trade Union and People’s Movement and the Global Unions of Guatemala state that in the last two years no progress has been made on the legal reforms contained in the road map and specifically that: (i) the initiatives put forward in the National Tripartite Committee, including by ILO officials, were met with lack of interest on the part of the employers and the Government; and (ii) as a result, it is still not accepted that individuals have the right to organize in sector or industry trade unions, or that foreign citizens have the right to freedom of association or that the persons directly concerned can take the decision to go on strike.

While noting the continued technical assistance of the Office, the Committee notes with regret that it can be seen from the above-mentioned elements that since 2018 no real progress has been made on the drafting or adoption of legislation that would bring the existing laws into line with the Convention. Emphasizing the importance of the tripartite agreements reached in 2018, the need to finally resolve the major discrepancies identified for decades between the legislation and the Convention, and the Government’s ultimate responsibility for the application of the Convention, the Committee trusts that, with the support of the Office through the technical cooperation programme, the tripartite constituents will conclude the dialogue initiated in 2018 on the issues still pending in the very near future. The Committee urges the Government to take the necessary steps, taking the outcome of the above-mentioned dialogue into consideration, to adopt legislation that fully complies with the Convention. The Committee firmly expects that the Government’s next report will contain indications of major progress.

Application of the Convention in practice

Registration of trade unions. In its previous comments, having made special note of the registration of trade unions, the Committee asked the Government to intensify the dialogue with the trade unions on revising and accelerating the trade union registration procedure. The Committee notes the Government’s indication that, further to the recommendations made by the Committee on Freedom of Association in October 2015 in the context of Case No. 3042, there are no obstacles to the free registration of trade union organizations. Specifically, the Government states that: (i) from the total of 36 applications for registration received in 2018, 34 trade unions were registered; (ii) between 1 August 2019 and 31 August 2020, 47 trade union organizations were registered in the Public Trade Union Register, while registration applications from 34 trade union organizations were refused or shelved on the basis of legal requirements, and 60 trade union organizations had to fulfil preconditions to be able to pursue the registration procedure; (iii) the Ministry of Labour prepared and disseminated a “trade union information pack”, after presenting this “pack” at a tripartite meeting in December 2018, in order to provide effective information to workers who wish to establish a trade union; (iv) in May 2019, an invitation was issued to the workers’ sector to participate in talks on the process of establishing trade unions; and (v) the technical cooperation programme prepared by the Office envisages measures to simplify procedures and reduce requirements for registration of trade unions.

The Committee also notes, however, that the Autonomous Popular Trade Union Movement of Guatemala and the Global Unions of Guatemala state that: (i) Guatemala remains the Latin American country with the lowest rate of trade union membership (1.5 per cent); (ii) according to the figures supplied by the Government itself in its report to the Governing Body, there has been a significant decrease in new trade union registrations in 2018 and 2019 compared with previous years; (iii) a substantial proportion of trade union organizations that applied for registration between August 2019 and August 2020 were not registered by the labour administration; and (iv) the figures supplied by the Government demonstrate that the labour administration is going too far in its practice of insisting on amendments to trade union constitutions as a precondition to registration and continues to impose registration requirements which are complex and legally dubious. Noting the latest figures regarding the registration of trade unions and the divergent views of the Government and the trade unions in this regard, the Committee encourages the Government and the trade unions to take major steps forward in their dialogue on accelerating the process of trade union registration. Underlining the opportunity that the technical cooperation programme prepared by the Office presents, the Committee requests the Government to provide information on all progress made in this respect.

Settlement of disputes relating to freedom of association and collective bargaining. With regard to the functioning of the Mediation and Dispute Settlement Subcommittee of the National Tripartite Committee, the Committee refers to its observations on the application of Convention No. 98.

Awareness-raising campaign on freedom of association and collective bargaining. In its previous comments, after noting a series of initiatives that had been taken or envisaged, the Committee urged the Government, in collaboration with the social partners, to ensure that the awareness-raising campaign on freedom of association and collective bargaining, provided for in the 2013 road map, was given real visibility in the national mass media. The Committee notes the Government’s observation that the technical cooperation programme prepared by the Office and approved by the national tripartite constituents envisages the “approval, dissemination and implementation of a campaign to promote collective bargaining”. The Committee also notes that the Guatemalan trade union federations claim that no progress has been made in the implementation of awareness-raising and dissemination campaigns relating to freedom of association.

The Committee notes with regret that since its last comment no significant progress has been made in the implementation of the awareness-raising campaign on freedom of association and collective bargaining. Emphasizing the major contribution that the National Tripartite Committee and its tripartite members should make in this respect and the responsibility that ultimately lies with the Government for ensuring that the commitments made in the road map are effectively implemented, the Committee once again urges the Government to take the necessary steps, with the support of the social partners and of the technical cooperation programme prepared by the Office, to ensure that the awareness-raising campaign on freedom of association and collective bargaining is given real visibility in the national mass media.

Observing the absence of significant progress in the past two years, the Committee urges the Government, in collaboration with the National Tripartite Committee and the support of the technical cooperation programme prepared by the Office to take all the necessary measures to remedy in the very near future the serious violations of the Convention noted for many years by the Committee.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019. The Committee notes that these observations refer to matters examined in the present comment and also to reports of violations of the Convention in practice, regarding which the Committee requests the Government to send its comments.

The Committee also notes the observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), supported by the International Organisation of Employers (IOE), received on 1 September 2019, referring to matters examined by the Committee in the present comment.

Lastly, the Committee notes the Government’s replies to the observations made in 2018 by the ITUC, the Guatemalan Autonomous Trade Union and People’s Movement and the Global Unions of Guatemala. These replies were taken into consideration by the Committee in its examination of the various issues raised in the present comment.

Follow-up to the decision adopted by the Governing Body at its 334th Session concerning the closure of the complaint submitted under article 26 of the ILO Constitution alleging non-observance of the Convention

The Committee notes the discussions which took place during the 337th Session (October–November 2019) of the Governing Body concerning additional measures taken to ensure a sustained and comprehensive implementation of the road map adopted in October 2013 as part of the follow-up to the complaint submitted in 2012 under article 26 of the ILO Constitution alleging non-observance of the Convention.

The Committee notes that the Governing Body decided, in accordance with what was established at its November 2018 session, that a second discussion of this matter will be held in November 2020. The Committee also notes the indication given during the exchanges in the Governing Body that a technical cooperation project drawn up by the Office in consultation with the national tripartite constituents to support the full implementation of the road map will be submitted shortly to the international donors.

Trade union rights and civil liberties

The Committee notes with regret that since 2005 it has been examining, in the same way as the Committee on Freedom of Association, allegations of serious acts of violence against trade union leaders and members, including numerous murders, and the related situation of impunity. The Committee notes the information provided by the Government in its report on the application of the present Convention and also the information contained in the reports presented to the Governing Body in September 2019 by the Government, on the one hand, and by the Guatemalan Autonomous Trade Union and People’s Movement and the Global Unions of Guatemala, on the other. The Committee also notes that the Committee on Freedom of Association, at its October–November 2019 session, examined Case No. 2609, which groups together the complaints of acts of anti-union violence, including 90 murders of members of the trade union movement recorded between 2004 and 2018 (see Case No. 2609, 391st Report of the Committee on Freedom of Association, paragraphs 270–302).

Referring to the examination of the above-mentioned case by the Committee on Freedom of Association for a detailed analysis of the situation of anti-union violence in the country, and of the action taken by the public authorities in this regard, the Committee highlights that: (i) since its last comment, the perpetrators of two murders committed in 2017 and 2018 were convicted in July 2019, the Government indicating that one of the murders took place in the context of numerous administrative and judicial proceedings for the non-observance of labour and trade union legislation; (ii) however, the vast majority of the 90 reported murders of members of the trade union movement remain unpunished, since only 20 convictions relating to 18 murders have been handed down so far; (iii) the Government continues to provide information on the institutional efforts made to elucidate all the above-mentioned murders and impose the appropriate penalties, as well as on other acts of anti-union violence, emphasizing in this regard the importance of the Special Investigation Unit at the Public Prosecutor’s Office and of the tripartite Subcommittee on Follow-Up to the Roadmap; (iv) the Guatemalan Autonomous Trade Union and People’s Movement and the Global Unions of Guatemala claim that there has been a regression in the protection policy implemented by the Ministry of the Interior; and (v) while the Government continues to provide information on the protection measures granted to members of the trade union movement, the Committee notes that these measures continue to be perimeter protection measures and not personal protection measures, with the exception of two cases in 2018 and 2019, and that the requests for protection made by members of the trade union movement have decreased significantly in 2019.

The Committee also notes with deep concern that the ITUC denounces in its observations the murder on 24 November 2018 of another member of the trade union movement, Mr Edras Ezequiel De La Rosa Morales, leader of the Union of Secondary-Level Distance Education Workers of Santa Rosa (SINTRAT-SR). The ITUC states that although the motives for the crime are unknown, the victim was a recognized leader of the above-mentioned union who was deeply involved in fighting for the observance of labour rights in the public education sector. The Committee also notes that the ITUC reports: (i) the attempted murder of Mr Joviel Acevedo Esteban, leader of the Education Workers’ Union of Guatemala (STEG), and of Mr Hermelindo Cux, from the Committee for Rural Worker Unity; and (ii) the alleged intimidation, on 9 August 2018, of Ms Mirna Nij, general secretary of the Women’s Trade Union Federation of Guatemala. Recalling that trade union rights can only be exercised in a climate free of violence, pressure or threats of any kind against trade unionists, and that it is for governments to ensure that this principle is respected, the Committee requests the Government to provide information on these individual allegations and to ensure that all appropriate protection measures are granted to persons who have been subjected to threats and intimidation.

In view of the above, while duly noting the action still being taken by the Government, the results reported and the difficulty involved in resolving the oldest murder cases, the Committee can only express its deep concern at the persistence of a high level of impunity, and at the reports of new acts of anti-union violence. The Committee therefore once again urges the Government to take and intensify, as a matter of urgency, all the necessary measures: (i) to investigate all acts of violence against trade union leaders and members with a view to determining responsibilities and punishing the perpetrators and instigators of such acts, taking the trade union activities of the victims fully into consideration in the investigations; and (ii) to provide prompt and effective protection for all trade union leaders and members who are at risk. With regard to the specific action required to achieve those objectives, the Committee refers to the recommendations made by the Committee on Freedom of Association in the context of Case No. 2609.

Legislative issues

Articles 2 and 3 of the Convention. The Committee recalls that for many years it has been asking the Government to take measures to amend the following legislative provisions:

• -section 215(c) of the Labour Code, which requires a membership of “50 per cent plus one” of the workers in the sector to establish a sector trade union (in its previous comment, the Committee noted with concern the trade unions’ indication that the combination of the impossibility of establishing sector trade unions under the requirements of section 215(c) and the impossibility in small enterprises, which account for almost all Guatemalan companies, to meet the Labour Code requirement of 20 workers for the establishment of a trade union, meant that most of the country’s workers were unable to exercise the right to join a trade union);
• -sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity to be eligible for election as a trade union leader;
• -section 241 of the Labour Code, under the terms of which, in order to be lawful, strikes have to be called by a majority of the workers and not by a majority of those casting votes;
• -section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996, which provides for the possibility of imposing compulsory arbitration in non-essential services and establishes other obstacles to the right to strike; and
• -sections 390(2) and 430 of the Penal Code and Decree No. 71-86, which establish labour, civil and criminal penalties in the event of a strike by public officials or workers in certain enterprises.

The Committee also recalls that for many years it has been asking the Government to take measures to ensure that various categories of public sector workers (hired under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

In its previous comment, the Committee noted with interest the tripartite agreements concluded in February and August 2018 relating to various aspects of the reforms needed to bring the legislation into line with the Convention. The Committee expressed the hope that, on the basis of the above, the Government would soon be in a position to report the adoption, requested for many years, of legislation which fully complies with the obligations contained in the Convention.

The Committee notes that the Government recalls that: (i) it previously submitted Bill No. 5199 with the purpose of bringing the legislation into line with the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); and (ii) it asked the President of the National Congress Working Committee to defer the discussion in plenary of the Congress of Bill No. 5199 in order to facilitate a tripartite consensus on the above-mentioned reforms; consequently, since August 2017, the National Congress has been awaiting the consensus of the social partners. The Government adds that during the meeting of July 2019 of the National Tripartite Committee, on the basis of the agreements reached in February and August 2018, the Ministry of Labour underlined the importance of adopting a timeframe for addressing legislative matters that were awaiting a tripartite agreement (industry trade unions and some aspects of the laws regarding strikes).

The Committee notes that the CACIF reiterates its commitment to the implementation of the road map and its legislative reform component. While supporting the stance adopted by the Employers’ group in the various ILO bodies, maintaining that the right to strike is neither contained in nor derived from any ILO Convention, the CACIF indicates its continued willingness to work on a tripartite basis to adopt a reform proposal that satisfies national interests in the matter.

The Committee also notes that the Guatemalan Autonomous Trade Union and People’s Movement and the Global Unions of Guatemala stated in their report submitted during the discussion at the 337th Session of the Governing Body that in the last year no progress has been made on the legal reforms contained in the road map and specifically that: (i) the initiatives put forward in the National Tripartite Committee, including by ILO officials, were met with lack of interest on the part of the employers and the Government; and (ii) as a result, it is still not accepted that individuals have the right to organize in sector or industry trade unions, or that foreign citizens have the right to freedom of association or that the persons directly concerned can take the decision to go on strike.

The Committee notes with regret that it can be seen from the above that since its last comments no real progress has been made on the drafting or adoption of legislation that would bring the existing laws into line with the Convention. Emphasizing the importance of the tripartite agreements reached in 2018 and the need to finally resolve the major discrepancies identified for decades between the legislation and the Convention, the Committee trusts that the tripartite constituents will resume the dialogue on the still pending issues in the very near future. The Committee urges the Government to take the necessary steps, taking account of the outcome of the above-mentioned dialogue, to adopt legislation that fully complies with the Convention. The Committee firmly hopes that the Government’s next report will contain indications of major progress.

Application of the Convention in practice

Registration of trade unions. In its previous comments, having made special note of the registration of trade unions, the Committee asked the Government to intensify the dialogue with the trade unions on revising and accelerating the trade union registration procedure. The Committee notes the Government’s indication that, further to the recommendations made by the Committee on Freedom of Association in October 2015 in the context of Case No. 3042, there are no obstacles to the free registration of trade union organizations. Specifically, the Government states that: (i) from the total of 36 applications for registration received in 2018, 34 trade unions were registered (20 in the public sector and 14 in the private sector); (ii) from the total of six applications received between 1 January and 29 April 2019, six trade unions were registered (five in the public sector and one in the private sector); (iii) it has prepared and disseminated a “trade union information pack”, after presenting this “pack” at a tripartite meeting in December 2018, in order to provide effective information to workers who wish to establish a trade union; and (iv) in May 2019, an invitation was issued to the workers’ sector to participate in talks on the process of establishing trade unions. Lastly, the Government adds that it would be important to know precisely if there are specific cases of trade unions in the process of being established which are facing any difficulties regarding their registration.

The Committee also notes, however, that the Guatemalan Autonomous Trade Union and People’s Movement and the Global Unions of Guatemala, in their report to the Governing Body in September 2019, state that: (i) Guatemala remains the Latin American country with the lowest rate of trade union membership (1.5 per cent); (ii) according to the figures supplied by the Government itself in its report to the Governing Body, there has been a significant decrease in new trade union registrations in 2018 and 2019 compared with previous years; (iii) there is a notable contrast between the number of unions registered in 2019 and the much higher number of registration applications made in the same year; and (iv) the above information illustrates the fact that the Ministry of Labour maintains the practice of imposing registration requirements which are complex and legally dubious. Noting the divergent views of the Government and the trade unions in this regard, the Committee once again invites the Government and the trade unions to take major steps forward in their dialogue on accelerating the process of trade union registration. The Committee requests the Government to provide information on all progress made in this respect and reminds it once again that it may avail itself of technical assistance from the Office.

Settlement of disputes relating to freedom of association and collective bargaining. With regard to the functioning of the Mediation and Dispute Settlement Subcommittee of the National Tripartite Committee, the Committee refers to its observations on the application of Convention No. 98.

Awareness-raising campaign on freedom of association and collective bargaining. In its previous comments, after noting a series of initiatives that had been taken or envisaged, the Committee urged the Government, in collaboration with the social partners, to ensure that the awareness-raising campaign on freedom of association and collective bargaining, provided for in the 2013 road map, was given real visibility in the national mass media. The Committee notes that the Government has made no further reference to the implementation of the awareness-raising campaign through the social networks of the Government, the Diario de Centroamérica (the official government newspaper in Guatemala) and a national radio station, and that the Government merely indicates that it submitted two draft press releases on the observance of Conventions Nos 87 and 98 to the National Tripartite Committee. The Government states that it is still awaiting the observations of the trade unions on these proposed press releases. The Committee also notes that the Guatemalan trade union federations, in their September 2019 report to the Governing Body, claim that no progress has been made in the implementation of awareness-raising and dissemination campaigns relating to freedom of association.

The Committee notes with regret that since its last comment no significant progress has been made in the implementation of the awareness-raising campaign on freedom of association and collective bargaining. Emphasizing the major contribution that the National Tripartite Committee and its tripartite members should make in this respect and the responsibility that ultimately lies with the Government for ensuring that the commitments made in the road map are effectively implemented, the Committee once again urges the Government to take the necessary steps, in collaboration with the social partners, to ensure that the awareness-raising campaign on freedom of association and collective bargaining is given real visibility in the national mass media.

The Committee hopes that, in the context of the implementation of the decision taken at the November 2018 session of the Governing Body, the Government will take the necessary measures, with the participation of the social partners in the National Tripartite Committee on Labour Relations and Freedom of Association and with the technical assistance from the Office, to remedy in the very near future the serious violations of the Convention noted for many years by the Committee.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2018, and the joint observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, received on the same date. The Committee notes that these observations refer to matters examined in the present comment and to complaints of violations in practice regarding which the Committee requests the Government to send its comments.

The Committee also notes the observations of the International Organisation of Employers (IOE) and the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), both received on 1 September 2018, which refer to matters examined by the Committee in the present comment.

Lastly, the Committee notes the Government’s replies to the 2017 observations of the ITUC, Autonomous Popular Trade Union Movement and the Global Unions of Guatemala. Those replies were taken into consideration by the Committee in the examination of various matters raised in this Observation.

Complaint made under article 26 of the ILO Constitution concerning non observance of the Convention

The Committee notes that, at its 334th Session (October–November 2018), in view of the report of the Tripartite Mission which visited Guatemala from 26 to 29 September 2018, taking note, firstly, of the significant contribution of the Tripartite National Committee on Labour Relations and Freedom of Association towards a more mature and constructive social dialogue and of the agreement reached by the national tripartite constituents on the principles that should guide legislative reform aimed at ensuring conformity with ILO Conventions Nos 87 and 98; and, secondly, of the need to provide continuity to the measures adopted to ensure that the positive social dialogue process leads to a comprehensive, effective and sustainable implementation of the roadmap; and, in the light of the progress made and the issues that remain pending, the Governing Body: (i) declared closed the procedure under article 26 of the ILO Constitution concerning the abovementioned complaint; (ii) firmly called on the Government, the Guatemalan social partners and the other relevant public authorities, with the support of the IOE and the ITUC, and the technical assistance of the Office, to elaborate and adopt legislative reforms that fully comply with point 5 of the roadmap; (iii) firmly called on the Government to, together with the Guatemalan social partners, and with the technical assistance of the Office, continue to devote all the efforts and resources necessary to achieve a sustained and comprehensive implementation of the other aspects of the roadmap; (iv) established that, in line with the National Tripartite Agreement of November 2017, the Government of Guatemala shall report on the further action taken at the Governing Body sessions of October–November 2019 and October–November 2020; (v) requested the Office to implement without delay a robust and comprehensive technical assistance programme to ensure the sustainability of the current social dialogue process as well as further progress in the implementation of the roadmap; and (vi) encouraged the international community to contribute to this technical assistance programme by providing the necessary resources.

Trade union rights and civil liberties

The Committee notes with regret that for a number of years it has been examining, in the same way as the Committee on Freedom of Association, allegations of serious acts of violence against trade union leaders and members, including numerous murders, and the related situation of impunity. The Committee notes the information provided by the Government, both in its report on the application of the present Convention and in its reports of September and October 2018 to the Tripartite Mission and the Governing Body as part of the follow-up to the complaint submitted under article 26 of the ILO Constitution. The Committee notes firstly that, in relation to 90 cases of deaths of trade union leaders and members, registered since 2004, the Government indicates that: (i) 17 convictions were handed down in relation to 15 cases (two cases involved two rulings each); (ii) four cases ended up with acquittals rulings; (iii) one case gave rise to a judicial sentence of security and corrective measures; (iv) criminal proceedings were dropped in six cases as a result of the death of the suspects; (v) one case was under judicial review; (vi) proceedings were at an intermediate stage in three cases; (vii) pending arrest warrants had been issued in six cases; and (viii) 54 cases were at the investigation stage. The Committee also notes the Government’s indication that: (i) since 2011, the Public Prosecutor’s Special Investigation Unit for Crimes against Trade Unionists has been substantially strengthened; (ii) the number of rulings handed down with respect to the deaths of trade union members has been much higher since the creation of the Special Unit; (iii) while several sentences relating to deaths of trade unionists handed down in recent years have been through the high-risk courts (specialized courts), the procedural burdens experienced in those courts is such that the referral to them of pending cases of trade unionist murders is not always the best option for ensuring prompt treatment of these cases in the courts; (iv) the application of Directive No. 1-2015 of the Public Prosecutor’s Office facilitates the establishment of a possible link between the homicides and the trade union activity of the victims, and helps speed up investigations, as shown by the rapid identification of suspects in the case of the murders of Ms Brenda Marleni Estrada Tambito (assassinated in 2016) and Mr Tomas Francisco Ochoa Salazar (assassinated in 2017); (v) between August 2017 and May 2018, 17 meetings took place between the Special Investigation Unit and the Criminal Investigation Division of the National Civil Police (DEIC) with a view to analysing the various criminal acts, taking into account their trade union context; (vi) collaboration between the Public Prosecutor and the International Commission against Impunity in Guatemala (CICIG) is ongoing with respect to 12 homicides selected by the trade union movement, which has given way to an adequate transfer of investigative capacities for this type of crime; (vii) there is an ongoing willingness of the Public Prosecutor’s Office to continue to exchange information with the trade union movement, whether through maintaining the Trade Union Committee or through other means, and (viii) the subcommittee for follow-up to the roadmap, which is part of the new National Tripartite Committee on Labour Relations and Freedom of Association contributes to an effective tripartite monitoring of the investigation into the deaths of trade unionists.

The Committee also notes the information provided by the Government on the protection measures afforded to members of the trade union movement who would be in a situation of risk, in which it indicates that: (i) all requests for security measures from trade unionists received by the Ministry of the Interior result in risk assessments; (ii) on the basis of those assessments, between January and July 2018, 59 perimeter security measures and one personal security measure were authorized; (iii) currently, four trade union leaders have personal security measures placed on them; (iv) the Protocol for the Implementation of Immediate and Preventive Security Measures in favour of Unionized Workers, Officers, and Trade Union Leaders, including those who advocate for the defence of labour rights, the content of which had been agreed with the trade unions, continues to apply; (v) the Department for the Assessment of Assaults on Human Rights Defenders, in which trade unions may participate, continues to operate; and (vi) the 24-hour emergency hotline to report cases of violence and threats against trade union leaders and members continues to operate.

The Committee notes, however, that the ITUC in its observations, and the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, in their observations on the application of the Convention and their reports of September and October 2018 to the tripartite mission and the Governing Body in the context of its complaint made under article 26 of the ILO Constitution, report: (i) the persistent impunity regarding the acts of violence committed against human rights defenders in general and trade unionists in particular; (ii) the lack of serious investigations by the Public Prosecutor’s Office and, especially, the ongoing failure to take account of the trade union activities of the victims when investigating the motives for the murders; (iii) the subsequent lack of tangible progress with regard to the investigation of murders of trade unionists and the securing of convictions for the perpetrators, especially those cases identified as a priority by the Committee on Freedom of Association in the context of Case No. 2609 (see 382nd Report, June 2017, paragraph 339); (iv) the actions of the Government and the National Congress to put an end to the CICIG in the country even though its specific engagement is needed in the investigation of murders of trade unionists as, in many of those cases, there is significant evidence of the participation of organized groups; (v) the significant deterioration, since the establishment of the new Ministry of the Interior in January 2018, of the security measures afforded by the authorities to human rights defenders in general and trade unionists in particular; (vi) the non-renewal in 2018 of the Standing Trade Union Technical Committee on Comprehensive Protection of the Ministry of the Interior; and (vii) the weakening of the Department for the Assessment of Assaults on Human Rights Defenders of the Ministry of the Interior owing to the constant turnover of governmental workers at the head of this department.

The Committee also notes with deep concern that the abovementioned trade union organizations specifically report: (i) the murder on 29 April 2018 of Alejandro García Felipe, general secretary of the local branch of the National Trade Union of Health Workers of Guatemala (SNTSG) Santa Rosa department; (ii) the murder, between 15 and 20 June 2018, of Domingo Nach Hernández, general secretary of the workers’ union of the Villa Canales municipality ; (iii) the murder, on 21 June 2018, of Juan Carlos Chavarría Cruz, general secretary of the Workers’ Union of the Melchor de Mencos municipality, Petén; (iv) the murder of David Figueroa García, chairman of the Executive Board of the Workers’ Union of San Carlos of Guatemala University, whose headquarters are in Petén, in June 2018; and (v) the murder of Juana Raymundo, a SNTSG member, on 29 July 2018. The trade union organizations add that in the first three cases, there are specific records and evidence indicating the possible anti-union nature of the murders and that, in two cases, the victims had previously requested security measures from the Ministry of the Interior, which were not granted.

While duly noting the continuing efforts of the Government and the difficulty involved in shedding light on the oldest cases of murder being examined, the Committee expresses its deep concern about the allegation of five new murders of members of the trade union movement in recent months and about the high level of impunity that prevails in relation to the allegations of numerous murders and acts of anti-union violence reported in recent years. The Committee also notes the announcement that the mandate of the CICIG will expire in September 2019. In the same way as the Committee on Freedom of Association, the Committee is of the view that, in the light of the scale and magnitude of the aforementioned challenges, together with the willingness expressed by the tripartite constituents through the establishment of the National Tripartite Committee on Labour Relations and Freedom of Association, ambitious measures to strengthen and carry out the national policy for combating anti-union violence and impunity are necessary and timely.

In light of the above, the Committee once again urges the Government, in order to give full effect to the Convention and the decision of the Governing Body of November 2018, without further delay continue taking and intensify as a matter of urgency all necessary measures to: (i) investigate all acts of violence against trade union leaders and members with a view to determining responsibilities and punishing the perpetrators and instigators of such acts, taking the trade union activities of the victims fully into consideration in the investigations; and (ii) provide prompt and effective protection for all trade union leaders and members who are at risk. With regard to the specific action required to achieve those objectives, the Committee refers to the recommendations issued by the Committee on Freedom of Association in the context of Case No. 2609 (see 387th Report of the Committee, October–November 2018, paragraph 410). The Committee requests the Government to provide detailed information in this respect.

Legislative issues

Articles 2 and 3 of the Convention. The Committee recalls that for many years it has been asking the Government to take measures to amend the following legislative provisions:

• -section 215(c) of the Labour Code, which requires a membership of “50 per cent plus one” of the workers in the sector to establish a sector trade union (in this respect, the Committee notes with concern the trade unions’ indication that the combination of the impossibility of establishing sector trade unions under the requirements of section 215(c) and the impossibility, in small enterprises, which represent almost all Guatemalan companies, to meet the requirement under the Labour Code, of 20 workers for the establishment of a trade union, results in the inability for most of the country’s workers to exercise the right to join a trade union, a situation which is reflected in the overall rate of trade union membership which stands at 1.5 per cent);
• -sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity to be able to be elected as a trade union leader;
• -section 241 of the Labour Code, under the terms of which, in order to be lawful, strikes have to be called by a majority of the workers and not by a majority of those casting votes;
• -section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996, which provides for the possibility of imposing compulsory arbitration in non-essential services and establishes other obstacles to the right to strike; and
• -sections 390(2) and 430 of the Penal Code and Decree No. 71-86, which establish labour, civil and criminal penalties in the event of a strike by public officials or workers in certain enterprises.

In addition, the Committee has been asking the Government for many years to take measures to ensure that various categories of public sector workers (engaged under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

In its previous comments, the Committee observed with interest that the tripartite agreement signed in November 2017 provided for the presentation to the National Congress by March 2018, using a tripartite approach, of the legislative proposals referred to in point 5 of the roadmap, the objective of which is to bring the national legislation into line with the Convention, and that the agreement referred to various specific matters raised by the Committee. The Committee notes that, according to the information provided by the Government and the social partners, in February 2018, the tripartite constituents, with a view to ensuring full compliance with the Convention of consolidated texts, agreed on: (i) the revision of sections 390(2) and 430 of the Penal Code; (ii) the revision of provisions of Decree No. 71-86 relating to the list of essential services; and (iii) the recognition of the trade union rights of public sector workers under short term and special regime contracts. The Committee also notes that, under an agreement signed on 28 August 2018, the national tripartite constituents agreed on a series of principles on which future legislation should be based relating to the establishment of sector trade unions and their right to collective bargaining as well as strike votes and their repercussions. While noting that the draft law referred to in the November 2017 agreement has still not been submitted, the Committee notes with interest the agreements concluded in February and August 2018. The Committee trusts that, in conformity with the November 2018 decision of the Governing Body and with the active participation of the social partners, the Government will soon be in a position to report the adoption, requested for many years, of legislation which fully complies with the obligations contained in the Convention. The Committee requests the Government to provide information on the developments in this regard, including a copy of the legislation.

Application of the Convention in practice

Registration of trade unions. In its previous comments, the Committee requested the Government to pursue more in depth dialogue with the trade unions on the revision and acceleration of the trade union registration process. The Committee expressed in its last comment the hope that the tripartite agreement of November 2017 would give fresh impetus to that dialogue. According to the information provided in the Government’s report and in its reports addressed to the September 2018 Tripartite Mission and the Governing Body: (i) 29 trade unions (16 from the public sector and 13 from the private sector) were registered between January and 21 September 2018; (ii) in the past three years, an average of 20 petitions have been filed; (iii) the registration process with the Ministry takes an average of three to five months; and (iv) in 2018, trade unions including workers with fixed-term contracts were registered for the first time in the Ministry register, as well as trade union associations (domestic workers’ unions and footballers’ unions). The Committee also notes, however, that in its observations within the framework of this Convention and in its report to the Tripartite Mission, the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala state that the trade unions continue to face unjustified obstacles to registration and that under the previous Minister of Labour and Social Security, additional requirements were unilaterally introduced for registration, which should be withdrawn. While taking due note of the information provided by the Ministry of Labour and, particularly, the registration of trade union associations, the Committee once again requests the Government to pursue in-depth and targeted dialogue with the trade unions to revise and accelerate the trade union registration process. The Committee requests the Government to provide information on all progress made in this respect and reminds it that it may avail itself of the technical assistance of the Office.

Settlement of disputes relating to freedom of association and collective bargaining. The Committee takes due note that: (i) established under the National Tripartite Committee, is the Subcommittee for Dispute Mediation and Settlement, which has replaced the Committee for the Settlement of Disputes before the ILO, in operation between 2015 and 2017; (ii) the Subcommittee’s rules of procedure are to be adopted, while the appointment of its independent mediator is pending. Noting the high number of disputes brought before the ILO and recalling its comments made in this respect within its 2017 observation on the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Committee encourages the Government and the social partners to devote the necessary efforts to ensure that the new subcommittee can, in the very near future, help to strengthen implementation of the Conventions concerning freedom of association and collective bargaining ratified by Guatemala. The Committee recalls once again that the Government may continue to rely on the Office’s technical assistance in this respect.

Awareness-raising campaign on freedom of association and collective bargaining. In its previous comments, the Committee urged the Government, in collaboration with the social partners, to ensure that the awareness-raising campaign on freedom of association and collective bargaining is given real visibility in the national mass media. The Committee notes the Government’s indication that: (i) the signing of the November 2017 tripartite agreement and the start-up of the National Tripartite Committee have resulted in a wider coverage by the mass media; (ii) the awareness-raising campaign is ongoing, particularly through the social networks of the Government, the Diario de Centroamérica (the official Guatemalan daily newspaper) and the Guatemalan radio station TWG; (iii) on the occasion of the ILO centenary, four conferences will be held on social dialogue and freedom of association, in cooperation with the country’s three main universities; and (iv) the National Tripartite Committee should function as a catalyst by means of which the tripartite constituents will be able to carry out joint initiatives to raise awareness of freedom of association and collective bargaining. The Committee also notes that, within the framework of the Tripartite Mission, the trade unions stated that the actions to launch the awareness-raising campaign had not been satisfactory and that, because of limited budgetary resources of the Ministry of Labour and Social Security, the Government should, under the authority of the President, collect funds to finance the campaign. The Committee notes, lastly, that, within the framework of the above-mentioned Mission, the CACIF: (i) agreed on the need to collect funds but highlighted the challenge that this posed; and (ii) indicated that, through the National Tripartite Committee, the tripartite constituents could publish joint statements on topics of interest, such as collective bargaining in the public sector. Noting that both the implementation of the decision of the November 2018 Governing Body and the institutionalization of the National Tripartite Committee constitute conducive contexts in this respect, the Committee once again urges the Government, in collaboration with the social partners, to take the necessary steps to ensure that the awareness-raising campaign on freedom of association and collective bargaining is given substantive visibility in the national mass media. The Committee requests the Government to provide information on any progress made in this respect.

The Committee trusts that, in the context of the implementation of the decision of the November 2018 Governing Body and the institutionalization of the National Tripartite Committee on Labour Relations and Freedom of Association, the Government, with the participation of the social partners and the technical assistance of the Office, will take the necessary measures to remedy, in the near future, the serious violations of the Convention noted for many years by the Committee.

[The Committee requests the Government to reply in full to the present comments in 2019.]

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 and 4 September 2017, and the joint observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, received on 30 August 2017. The Committee notes that these observations refer to issues examined in the present comment and to complaints of violations in practice regarding which the Committee requests the Government to send its comments.

The Committee also notes the observations of the International Organisation of Employers (IOE) and the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), both received on 1 September 2017, which refer to matters examined by the Committee in the present comment.

Complaint made under article 26 of the ILO Constitution concerning non observance of the Convention

The Committee notes in particular that the Governing Body, at its 331st Session (October–November 2017), welcomed the agreement reached by the Guatemalan tripartite constituents on 2 November 2017 in order to achieve the full implementation of the roadmap adopted in October 2013 and thereby resolve the matters raised in the complaint submitted under article 26 of the ILO Constitution by various Worker delegates to the 101st Session of the International Labour Conference (May–June 2012) concerning non-observance of the Convention by Guatemala. The Committee notes that, on the basis of the foregoing, the Governing Body: (i) urged the Government, together with the Guatemalan social partners and with the technical assistance of the Office and of its representative in Guatemala, to devote all the efforts and resources needed to implement the national tripartite agreement aimed at settling the unresolved matters in the roadmap; and (ii) deferred until its 332nd Session (March 2018) the decision on the appointment of a Commission of Inquiry.

The Committee notes with interest that the tripartite agreement provides for: (i) the establishment of a Tripartite National Committee on Labour Relations and Freedom of Association responsible, inter alia, for guiding the actions necessary for implementation of the roadmap; and (ii) by March 2018, the presentation to the National Congress, using a tripartite approach, of the legislative proposals referred to in point 5 of the roadmap, the objective of which is to bring the national legislation into line with the Convention.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the discussion held in the Conference Committee on the Application of Standards (hereinafter the Conference Committee) in June 2017 on the application of the Convention by Guatemala. The Committee notes in particular that the Conference Committee requested the Government to: (i) continue to investigate, with the involvement of the Public Prosecutor’s Office, all acts of violence against trade union leaders and members, with a view to identifying and understanding the root causes of violence, understanding whether trade union activities was a motive, determining responsibilities and punishing the perpetrators; (ii) continue to strengthen the operation of the Conflict Resolution Committee, including in relation to the complementarity between the Conflict Resolution Committee and the judicial mechanisms for the protection of freedom of association; (iii) eliminate the various legislative obstacles to the free establishment of trade union organizations and, in consultation with the social partners and with the support of the Special Representative of the Director General, review the handling of registration applications; (iv) continue to provide rapid and effective protection to all trade union leaders and members who are under threat so as to ensure that protected individuals do not personally have to bear any costs arising from those schemes; (v) ensure the effective operation of the Special Investigation Unit for Crimes against Trade Unionists of the Public Prosecutor’s Office by allocating the necessary resources; (vi) increase the visibility of the awareness-raising campaign on freedom of association in the mass media and ensure that there is no stigmatization whatsoever against collective agreements existing in the public sector; (vii) continue taking the necessary steps to fully implement the roadmap adopted on 17 October 2013 in consultation with the social partners; and (viii) continue to engage with the Special Representative of the Director-General in Guatemala in pursuing the implementation of the Memorandum of Understanding and the roadmap.

Trade union rights and civil liberties

The Committee notes with regret that for a number of years, in the same way as the Committee on Freedom of Association, it has been examining allegations of serious acts of violence against trade union leaders and members, including numerous murders, and the related situation of impunity. The Committee notes the information provided by the Government, both in its report on the application of the present Convention and in its report of October 2017 to the Governing Body as part of the follow-up to the complaint submitted under article 26 of the ILO Constitution. The Committee takes special note of the Government’s indication that: (i) with regard to the 89 recorded murders of trade union leaders and members, 21 verdicts have been issued to date (16 convictions, four acquittals and one judgment imposing security measures); (ii) of these 21 verdicts, five were issued in 2017; (iii) three convictions recently secured by the Public Prosecutor’s Office were handed down by courts for high-risk proceedings, including those involving offences against trade unionists’ life, further to a decision of the Criminal Chamber; (iv) in addition to the rulings handed down, significant progress has been made in investigations or proceedings relating to another five murders and one attempted murder, including the killing of Mr Tomás Francisco Ochoa Salazar, Disputes Secretary of the SITRABREMEN trade union organization, which occurred on 1 September 2017; (v) through the coordinated action of the Special Unit at the Public Prosecutor’s Office for the Investigation of Crimes against Trade Unionists (Special Investigation Unit) and the Office of the Deputy Minister for Security at the Ministry of the Interior; three arrest warrants were issued and a fourth person was summoned to make an initial statement; (vi) collaboration is ongoing with the International Commission against Impunity in Guatemala (CICIG) in relation to the investigation of a list of 12 murders compiled by the trade union movement; (vii) the Trade Union Committee at the Public Prosecutor’s Office continues to function; (viii) Directive No. 1-2015 of the Public Prosecutor’s Office has been applied in every case of anti-union violence resolved since 2015 and all the investigation files record steps taken to establish any trade union involvement of the victims; and (ix) the abovementioned Special Investigation Unit has been restructured and now comprises 19 persons and three inspection departments (one dealing with investigations into violent deaths and two dealing with non-compliance with judicial orders for reinstatement).

The Committee also notes the information provided by the Government concerning protection measures for members of the trade union movement at risk. The Government indicates that: (i) all requests for protection measures for members of the trade union movement received by the Ministry of the Interior give rise to a risk assessment; (ii) on the basis of such studies, 28 security measures covering specific locations and two personal security measures were granted between January and July 2017; and (iii) the Protocol for the implementation of immediate and preventive security measures for trade union members, union leaders and labour rights advocates was adopted and published, the content having been agreed upon by the trade unions.

The Committee also notes that the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, and also the ITUC, in their observations on the application of the present Convention and in their report of October 2017 to the Governing Body as part of the follow-up to the complaint submitted under article 26 of the ILO Constitution, report: (i) the persistence of numerous attacks and threats against members of the trade union movement; (ii) a lack of tangible progress with regard to the investigation of the 89 murders of trade unionists and the securing of convictions for the perpetrators; (iii) serious methodological defects in the investigation conducted by the Public Prosecutor’s Office and, in particular, failure to take account of the trade union activities of the victims when investigating the motives for the murders; (iv) minimal attention given to identifying the instigators of the offences; (v) a persistent lack of human and financial resources for the Special Investigation Unit; and (vi) apart from the murder cases, a lack of investigation, let alone any imposition of penalties, regarding other anti-union criminal acts.

The Committee also notes with deep concern that the abovementioned trade union organizations specifically report: (i) the murder on 9 November 2016 of Mr Eliseo Villatoro Cardona, leader of the Union of Organized Municipal Employees of Tiquisate (SEMOT), an organization affiliated to the Guatemalan Union, Indigenous and Peasant Movement (MSICG), after SEMOT had received numerous threats from the municipal authorities; (ii) the killing on 23 June 2017, by a security guard at a ranch in Coatepeque, of Mr Eugenio López, aged 72, during a peaceful demonstration of current and former ranch workers to demand the payment of their employment benefits; and (iii) the murder on 1 September 2017 of Mr Tomás Francisco Ochoa Salazar, Disputes Secretary of the SITRABREMEN union, in a climate of bullying and harassment of the members of that union. Lastly, the Committee notes the 2016 annual report of the Human Rights Procurator’s Office of Guatemala, indicating that 30 attacks on trade unionists were recorded between January and November 2016.

The Committee deplores that there persist numerous allegations of acts of anti-union violence and further murders of trade union leaders and members. While taking due note of the five judgments handed down in 2017 in relation to murders of members of the trade union movement, the Committee notes with regret the continuing impunity in the vast majority of cases of recorded murders of trade unionists. In the same way as the Committee on Freedom of Association in the context of Case No. 2609 (382nd Report, paragraphs 315–353), the Committee once again expresses its particular concern at the lack of progress in the investigations of murders in which evidence has already been found of a possible anti-union motive. In light of the above, the Committee firmly urges the Government to intensify its efforts to: (i) investigate all acts of violence against trade union leaders and members with a view to determining responsibilities and punishing the perpetrators and instigators of such acts, taking the trade union activities of the victims fully into consideration in the investigations; and (ii) provide prompt and effective protection for all trade union leaders and members who are at risk. In particular, the Committee urges the Government, as part of the implementation of the tripartite agreement of November 2017, to intensify its efforts to: (i) allocate additional financial and human resources to the Special Unit at the Public Prosecutor’s Office for the Investigation of Crimes against Trade Unionists; (ii) increase the collaboration initiated between the Public Prosecutor’s Office and the CICIG; (iii) invest additional effort and resources in investigations into murder cases where possible anti-union motives have already been identified; (iv) examine in the courts for high-risk proceedings a greater number of murders of trade unionists; and (v) increase the budget allocated to protection schemes for trade unionists. The Committee requests the Government to continue providing information on all the measures adopted and the results achieved in this respect. As regards the alleged absence of investigations and penalties regarding anti-union offences that do not involve physical violence, the Committee requests the Government to conduct an assessment with the competent authorities into the adequacy of existing criminal legislation.

Legislative issues

Articles 2 and 3 of the Convention. The Committee recalls that for many years it has been asking the Government to take measures to amend the following legislative provisions:

• -section 215(c) of the Labour Code, which requires a membership of “50 per cent plus one” of the workers in the sector to establish a sector trade union;
• -sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity to be able to be elected as a trade union leader;
• -section 241 of the Labour Code, under the terms of which, in order to be lawful, strikes have to be called by a majority of the workers and not by a majority of those casting votes;
• -section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996, which provides for the possibility of imposing compulsory arbitration in non essential services and establishes other obstacles to the right to strike;
• -and sections 390(2) and 430 of the Penal Code and Decree No. 71-86, which establish labour, civil and criminal penalties in the event of a strike by public officials or workers in certain enterprises.

In addition, the Committee has been asking the Government for many years to take measures to ensure that various categories of public sector workers (engaged under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

In its previous observation, the Committee noted with interest various aspects of Bill No. 5199 and observed that certain comments of the Committee were not being taken into consideration in the aforementioned Bill. The Committee notes that, with support from the Representative of the Director-General in Guatemala, bipartite discussions have been held throughout 2017 between the employers and workers, resulting in: (i) a consensus on the reform of the provisions of the Penal Code relating to strikes, on which the Committee has been commenting for many years; and (ii) on a bipartite request for Bill No. 5199 to be withdrawn from the National Congress to enable the social partners to reach further agreements on the content of the text.

The Committee further observes that the tripartite agreement signed in November 2017 provides for the presentation to the National Congress by March 2018, using a tripartite approach, of the legislative proposals referred to in point 5 of the roadmap, the objective of which is to bring the national legislation into line with the Convention. The Committee notes with interest that the agreement refers specifically to the following matters on which tripartite consensus will be sought to amend the legislation: (i) the application of the labour legislation to temporary contracts and special regimes in the public sector; (ii) the mechanisms and requirements applicable to sectoral collective bargaining covering, inter alia, the thresholds for the establishment of sectoral trade union organizations, the right to engage in collective bargaining, and the identification of the most representative organization; (iii) the rules applicable to strike votes; and (iv) the determination of the list of essential services.

Recalling that the Government and the social partners may seek technical assistance from the Office to support them in amending the legislation, the Committee expects that the Government will soon be in a position to report the adoption of legislation which fully complies with the obligations contained in the Convention.

Application of the Convention in practice

Registration of trade unions. In its previous comment, the Committee asked the Government to pursue, with the technical assistance of the Office, more in depth dialogue with the trade unions on the reform of the registration procedure and to continue providing information on the number of registrations requested and those recorded. According to the information supplied by the Government in its report, and in the other reports to the Governing Body, from 1 January to 31 October 2017, a total of 61 trade unions were recorded in the public trade union register, while three applications were rejected for failure to observe the statutory time limits. While noting the indication that the Ministry of Labour is making adjustments to the electronic version of the trade union register, the Committee observes that the Government has not provided any new information on the reform of the registration procedure to indicate that account is being taken of the criticism which the trade unions have been expressing for many years and which has given rise to the presentation of a number of complaints examined by the Committee on Freedom of Association. The Committee emphasizes that the trade unions object, inter alia, to excessive delays in the registration process, which facilitate the dismissal of union founder members. The Committee expects that the implementation of the tripartite agreement of November 2017 will help to give fresh impetus to the dialogue between the Government and the trade unions to revise and accelerate the trade union registration process. The Committee requests the Government to provide information on all progress made in this respect.

Settlement of disputes relating to freedom of association and collective bargaining

In its previous comment, the Committee asked the Government to evaluate the terms of reference and operation of the Committee for the Settlement of Disputes (Conflict Resolution Committee) relating to freedom of association and collective bargaining (hereinafter Dispute Settlement Committee) with a view to reinforcing the effectiveness and impact of that body. In this regard, the Committee refers to its observation on the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

Awareness-raising campaign on freedom of association and collective bargaining

In its previous comments, the Committee underlined the need for wide dissemination in the national mass media of the awareness-raising campaign on freedom of association and collective bargaining prepared in collaboration with the Office as part of the implementation of the roadmap. The Committee notes the Government’s indications that: (i) the campaign on freedom of association and collective bargaining continues to be disseminated through the social media networks of government institutions; (ii) interviews were conducted with the labour and social welfare authorities via various government communication media; (iii) an awareness-raising workshop for journalists and opinion-formers and a similar seminar for the communication directors of the three state authorities were held; and (iv) on 31 August and 1 September 2017, campaign posters were inserted in two high-circulation newspapers. The Committee also notes that the CACIF refers to the organization, with support from the Representative of the ILO Director-General in Guatemala, of two awareness-raising activities on sustainable enterprises and fundamental rights at work, one for agriculture and the other for the maquila (export processing) sector. Lastly, the Committee notes that the trade unions in Guatemala, in their report of October 2017 to the Governing Body as part of the follow-up to the article 26 complaint, express regret once again that the awareness-raising campaign is limited to the official media, which have little impact on the general public, and that at the same time there is an aggressive campaign in leading media outlets against trade union activity and collective bargaining, especially in the public sector. Observing that the signing of the tripartite agreement in November 2017 and the establishment of the Tripartite National Committee on Labour Relations and Freedom of Association provide a major opportunity in this respect, the Committee urges the Government once again to take the necessary steps, in collaboration with the social partners, to ensure that the awareness-raising campaign on freedom of association and collective bargaining is given real visibility in the national mass media, beyond the official media. The Committee requests the Government to provide information on all progress made in this respect.

The maquila sector. The Committee refers to its observation on the application of Convention No. 98.

The Committee hopes that the implementation of the tripartite agreement of November 2017 will create the required impetus for the Government, with the participation of the social partners and technical assistance from the Office, to take the necessary steps to remedy the grave violations of the Convention which have been observed by the Committee for many years.

[The Committee requests the Government to reply in full to the present comments in 2018.]

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the observations received on 1 September 2016 submitted, respectively, by the: (i) International Trade Union Confederation (ITUC); (ii) Autonomous Popular and Trade Union Movement of Guatemala; and (iii) the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG). The Committee notes that these observations refer to matters examined in its present comment and also to denunciations of violations in practice on which the Committee requests the Government to provide its comments. The Committee also notes the joint observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), received on 1 September 2016, referring to matters examined by the Committee in the present observation. Finally, the Committee notes the observations of the International Organisation of Employers (IOE), received on 1 September 2016, which are of a general nature.

Complaint made under article 26 of the ILO Constitution concerning non observance of the Convention

The Committee notes that at its 328th Session (October–November 2016), the Governing Body decided to defer consideration until its 329th Session (March 2017) of the decision to establish a Commission of Inquiry to examine the complaint submitted under article 26 of the ILO Constitution by various Worker delegates to the 101st Session of the International Labour Conference (May–June 2012) concerning non-observance of the Convention by Guatemala. The Committee notes that the Governing Body took special note of the submission to the Congress of the Republic, on 27 October 2016, of two draft legislative initiatives, one relating to freedom of association, and that the Governing Body expressed the firm expectation that it would be informed before its 329th Session (March 2017) of the passage into law of legislation that is fully in conformity with the conclusions and recommendations of the ILO supervisory system and the Convention.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee notes the discussion held in the Conference Committee on the Application of Standards (hereinafter the Conference Committee) in June 2016 on the application of the Convention by Guatemala. The Committee notes in particular that the Conference Committee urged the Government to: (i) investigate, with the involvement of the Public Prosecutor’s Office, all acts of violence against trade union leaders and members, with a view to determining responsibilities and punishing the perpetrators, taking the trade union activities of the victims fully into consideration in the investigations as one of the possible motives; (ii) provide rapid and effective protection to all trade union leaders and members who are under threat, increasing the budget allocated to protection schemes for trade unionists so as to ensure that protected individuals do not personally have to bear any costs arising out of those schemes; (iii) submit to the Congress, before September 2016, a draft law respecting the number of workers required to constitute a trade union and the categories of workers in the public sector to ensure the conformity of national legislation with the Convention; (iv) eliminate the various legislative obstacles to the free establishment of trade union organizations and, in consultation with the social partners and with the support of the Special Representative of the ILO Director-General, review the handling of registration applications; (v) disseminate in the national mass media the campaign on freedom of association and collective bargaining supported by the Special Representative of the ILO Director-General, and ensure that there is no stigmatization whatsoever against collective agreements existing in the public sector; (vi) continue to support the work of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining; and (vii) continue taking the necessary steps to fully implement the roadmap adopted on 17 October 2013 in consultation with the social partners.

Trade union rights and civil liberties

The Committee regrets that for a number of years, in the same way as the Committee on Freedom of Association, it has been examining allegations of serious acts of violence against trade union leaders and members, including numerous murders and the related situation of impunity. The Committee notes the Government’s indication that: (i) up to now, there have been 14 rulings on the over 70 cases of murder brought before the Committee on Freedom of Association of the International Labour Organization, 11 of which were convictions; (ii) the Office of the Public Prosecutor and the courts have found that the motive for the violent murders subject to these 11 convictions was not based on trade union activity or the defence of the labour rights of the victims; (iii) the perpetrators of the attempted murder of trade unionist Cruz Telón were convicted on 25 April 2016 for attempted murder and robbery with violence; (iv) the Office of the Public Prosecutor, through the Special Investigation Unit for Crimes Against Trade Unionists, has made significant progress in the investigation of another two cases (the murders of José Ricardo Morataya Lemus and Bruno Ernesto Figueroa, in which cases rulings have not yet been handed down); (v) the Trade Union Committee of the Office of the Public Prosecutor is continuing to meet regularly, with the participation on a monthly basis of trade unions, the Office of the Public Prosecutor, the Ministry of Labour and the Special Representative of the ILO Director-General; (vi)  collaboration is continuing with the International Commission Against Impunity in Guatemala (CICIG) relating to the investigation of a list of 12 murders selected by the trade union movement; (vii) the Special Investigation Unit for Crimes Against Trade Unionists has been restructured and is now composed of two agencies; (viii) during the first half of 2016, the Ministry of the Interior granted two personal security measures and 24 security measures covering specific locations for trade union members; (ix) on 18 August 2016, the authorities of the Ministry of the Interior reached agreement with trade union representatives on a draft Protocol for the implementation of immediate and preventive security measures for trade union members; (x) the emergency telephone number 1543 continues to operate for the denunciation of acts of violence or threats against trade union members and human rights defenders; and (xi) in June 2016, a special bonus of 700 Guatemalan quetzals (GTQ) a month was authorized for officers of the National Civil Police so that protected persons do not have to personally cover any cost in that regard. The Committee also notes that, within the framework of the examination by the Governing Body of the complaint made under article 26 of the ILO Constitution, the Government reported the capture and prosecution of the alleged murderer of Brenda Marleni Estrada Tambito, trade union adviser to the Trade Union of Workers of Guatemala (UNSITRAGUA-Historic), who was murdered in June 2016.

The Committee notes that the various national trade union organizations and the ITUC: (i) denounce the persistence of many attacks and threats against members of the trade union movement; (ii) denounce the absence of specific progress in the investigation of the 75 murders of trade union members and the conviction of their murderers; and (iii) particularly regret the absence of convictions or significant progress in the investigation of murders in which evidence of a possible anti-union motive has already been identified. In this connection, the Committee notes that the Autonomous Popular Trade Union Movement of Guatemala indicates that collaboration with the CICIG in relation to 12 murders corroborates the existence of clear evidence relating the murders with the trade union activities of the victims. The representatives of the trade union confederations nevertheless regret that, despite the above, there is still much to do to shed full light on these crimes. The Committee further notes the six-monthly report on acts of violence against trade unionists for January–June 2016, prepared by the Network of Labour Rights Defenders of Guatemala and forwarded by the ITUC. According to this report, 11 threats against trade union members, five physical attacks, including two murders (the death on 24 February 2016 of Silvia Marina Calderón Uribio, member of the Union of Workers of the National Committee for Alphabetization (SITRACONALFA), and the death on 19 June 2016 of Brenda Marleni Estrada Tambito, legal adviser to UNSITRAGUA-Historic) have been recorded during the first half of 2016. The Committee notes the emphasis placed by the CACIF on the persistence of the general climate of violence affecting the country, which is accompanied by a high level of impunity (of the over 20,000 murders in the country in 2012, only 12.77 per cent of cases resulted in a conviction). The CACIF indicates that, although these figures are not an excuse for failing to make progress in the investigation of the violent deaths of trade unionists, they do illustrate the general inefficiency of the application of justice in Guatemala.

The Committee notes with deep concern the persistent allegations of acts of anti-union violence, including physical aggression and murders. While taking due note of the results achieved by the Office of the Public Prosecutor in the investigation of the latest murder of a member of the trade union movement which occurred in June 2016, the Committee regrets that it is once again bound to note the overall absence of progress in combating impunity. In the same way as the Committee on Freedom of Association in the context of Case No. 2609 (378th Report, paragraphs 272–325), the Committee expresses its particular concern at the lack of progress in the investigations of murders in which evidence has already been found of a possible anti-union motive. In light of the above, the Committee firmly urges the Government to intensify its efforts to: (i) investigate all acts of violence against trade union leaders and members with a view to determining responsibilities and punishing the perpetrators and instigators of such acts, taking fully into consideration in the investigations the trade union activities of the victims; and (ii) provide prompt and effective protection for all trade union leaders and members who are at risk. In particular, the Committee urges the Government to intensify its efforts to: (i) allocate additional financial and human resources to the Special Investigation Unit for Crimes against Trade Unionists of the Office of the Public Prosecutor; (ii) develop the collaboration initiated between the Office of the Public Prosecutor and the CICIG; (iii) establish special courts to deal more rapidly with crimes and offences committed against members of the trade union movement; and (iv) increase the budget for protection programmes for members of the trade union movement. The Committee requests the Government to continue providing information on all of the measures adopted and the results achieved in this regard.

Legislative issues

Articles 2 and 3 of the Convention. The Committee recalls that for many years it has been requesting the Government to take measures to amend several legislative provisions.

In this regard, the Committee notes that the Government has provided a copy of a Bill which seeks to bring legislation into conformity with the Convention and which was submitted to the Congress of the Republic on 27 October 2016.

The Committee observes with interest that the Bill addresses the Committee’s previous comments in relation to:

• -the minimum membership requirements set out in section 215(c) of the Labour Code for sectoral trade unions – by replacing the current requirement to affiliate 50 per cent plus one of those working in the sector, with a 90 members minimum membership requirement;
• -the restrictions for election as trade union leader – by allowing up to one-third of the union’s executive committee to be composed of foreign nationals, and by allowing, in the same proportion, that former employees of the enterprise, guild or sector of the union concerned be designated by the union’s executive committee;
• -the majority required to call a strike – by replacing the requirement of a majority of all workers in the enterprise, with a requirement of the majority of the workers present at the assembly specially convoked for the strike ballot;
• -the imposition of compulsory arbitration in non-essential services in the strict sense of the term – by eliminating such imposition through the amendments of section 4(d) of the Act on Unionization and the Regulation of Strikes of Public Employees (Decree No. 71-86, as amended by Legislative Decree No. 35-96; and
• -the prohibition of solidarity strikes – by eliminating such prohibition through the amendment of section 4(d) of the Act on Unionization and the Regulation of Strikes of Public Employees.

However, the Committee regrets to note that the provisions of the Bill amending sections 390(2) and 430 of the Penal Code do not resolve the difficulties raised by the Committee in its previous comments. In this respect, the Committee notes that the Bill’s proposal revise section 390(2) of the Penal Code imposes imprisonment penalties from one to five years to persons who “carry out acts that result in sabotage, damage or destruction of private property of an enterprise or a public institution, affecting their production or service”. The Committee observes that the large breadth of such formulation retains the risk of imposing penal sanctions on workers carrying out a peaceful strike. The Committee further notes the Bill does not address the Committee’s concerns as to section 430 of the Penal Code, inasmuch as the amended formulation on the Bill sets out that “civil servants, public employees and employees or dependants of a public service enterprise who abandon their post, work or service, will be liable to imprisonment for a term of six months to two years” and that this sanction will be doubled for the leaders, promoters, or organizers of the massive abandonment or if the abandonment results in damage to the public interest. In this regard, the Committee recalls that no penal sanctions should be imposed with respect to carrying out a peaceful strike and that such sanctions should only be permissible where violence against persons or property, or other serious infringements of penal law have been committed.

Finally, the Committee regrets that the Bill does not include measures to ensure that various categories of public sector workers (engaged under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

In the light of the above, the Committee trusts that all the legislative amendment it has requested for many years will be adopted in the near future in accordance with all the Committee’s comments. While welcoming the progress contained in the Bill submitted by the Government, the Committee emphasizes the importance of the Government having recourse as soon as possible to the technical assistance of the Office to ensure that the Bill that is adopted is in full compliance with the guarantees of the Convention. The Committee requests the Government to provide information in this respect.

Application of the Convention in practice

Registration of trade unions. In its previous comment, the Committee expressed deep concern at the obstacles to the registration of trade unions noted by the Committee on Freedom of Association within the framework of Case No. 3042. In this regard, the Committee notes the Government’s indication that: (i) there was a significant increase in the registration of trade unions during 2015 (52 registrations) and the first half of 2016 (76 registrations between January and July); (ii) a draft Government Decision to reduce the time required for the registration of trade unions was submitted on 8 September 2016 by the Ministry of Labour and Social Welfare to the Tripartite Committee on International Labour Affairs; and (iii) the submission of the Bill resulted in complete rejection by the workers, thereby preventing genuine consultations. The Committee also notes that both the Autonomous Popular Trade Union Movement of Guatemala and the MSICG continue to denounce cases of hindrance in the registration of trade unions. In light of the above, the Committee requests the Government to continue to have recourse to the technical assistance of the Office in order to pursue more in-depth dialogue with the trade unions on the reform of the registration procedure. The Committee also requests the Government to continue providing information on the number of registrations requested and those recorded.

Conflict resolution on freedom of association and collective bargaining

Settlement of disputes relating to freedom of association and collective bargaining. In its previous comment, the Committee invited the Government to continue strengthening the Conflict Resolution Committee on Freedom of Association and Collective Bargaining (hereinafter the Conflict Resolution Committee). In this regard, the Committee notes that: (i) the Government has provided information on the activities of the Conflict Resolution Committee indicating that progress has been achieved in certain aspects of two cases that are before the Committee on Freedom of Association; (ii) the Autonomous Popular Trade Union Movement of Guatemala indicates that the Conflict Resolution Committee has achieved very limited results, with the partial settlement of a single case, and considers that the terms of reference and operation of the Conflict Resolution Committee need to be reviewed; and (iii) the CACIF emphasizes that only four cases examined by the Conflict Resolution Committee are related to the private sector. In light of the above, and with a view to reinforcing the effectiveness and impact of the Conflict Resolution Committee, the Committee requests the Government to undertake, in consultation with the social partners and with the support of the Office of the Special Representative of the ILO Director General, an evaluation of the terms of reference and operation of the Conflict Resolution Committee. Noting the reiterated observations by trade unions alleging a complete absence of judicial protection for freedom of association, the Committee calls for the inclusion in this evaluation of an examination of the complementarity between the Conflict Resolution Committee and the judicial mechanisms for the protection of freedom of association in the country, together with an analysis of their effectiveness.

Awareness-raising campaign on freedom of association and collective bargaining. In its previous comment, and in light of the commitments made by the Government in the 2013 roadmap, the Committee invited the Government to disseminate in the national mass media the awareness-raising campaign on freedom of association and collective bargaining prepared in collaboration with the Office. In this regard, the Committee notes the Government’s indication that: (i) a communication plan has been prepared to pursue the campaign initiated the previous year; (ii) the campaign has been disseminated in the governmental mass media with the support of 13 ministries and other public institutions; and (iii) a workshop on international labour standards for managers of the media, columnists and opinion-formers, especially focusing on freedom of association and collective bargaining, was held on 27 October 2016 jointly with the Office of the ILO Special Representative of the Director-General. The Committee also notes that the various trade unions consider that there is no campaign to promote freedom of association and that, on the contrary, since the middle of 2015, the public authorities have been carrying out, with the support of the mass media, a very aggressive campaign against trade unionism and collective bargaining in the public sector. Expressing its concern at the allegations made by the trade unions, especially in a context marked by frequent acts of anti-union violence, the Committee considers that these allegations make it even more necessary to disseminate broadly in the national mass media the awareness raising campaign on freedom of association and collective bargaining prepared in collaboration with the Office. The Committee therefore once again requests the Government to provide information on the action taken to carry out such broad dissemination.

The maquila sector. For many years, the Committee has been requesting the Government to intensify its efforts to promote and guarantee full respect for trade union rights in the maquila sector. In this connection, the Committee notes the Government’s indication that, on the basis of a specific operational plan, the labour inspectorate carried out inspections of 88 enterprises in the maquila sector in 2015, focusing on the payment of the minimum wage. The Government also reports the reactivation in June 2016 of the coordinating unit for the apparel and textile sector. While noting this information, the Committee regrets to note that the Government has not reported any initiative related specifically to the exercise of freedom of association in the sector. Recalling that for many years it has been receiving allegations of violations of freedom of association in the maquila sector and that the impossibility to exercise freedom of association in the sector was one of the five elements contained in the complaint made in 2012 under article 26 of the ILO Constitution, the Committee once again requests the Government to: (i) take specific measures to promote and guarantee full compliance with trade union rights in the maquila sector; (ii) accord special attention to the maquila sector in the context of the awareness-raising campaign; and (iii) report on the exercise in practice of trade union rights in the maquila sector, with an indication of the number of active trade unions and workers who are members of those unions.

The Committee once again trusts that the Government will take all the necessary measures to resolve the serious violations of the Convention noted by the ILO supervisory bodies and that it will take full advantage of the technical assistance made available to the country by the Office, as well as the resources available through international cooperation, including within the context of the project funded by the Directorate General for Trade of the European Commission.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the observations received on 1 September 2015 of the: (i) International Trade Union Confederation (ITUC); (ii) Autonomous People’s Trade Union Movement of Guatemala and the global trade unions of Guatemala; and (iii) the Guatemalan Union, Indigenous and Peasant Movement (MSICG). The Committee notes that these observations relate to matters examined by the Committee in its present observation as well as to denunciations of violations in practice on which the Committee is requesting the Government to provide its comments. The Committee also notes the joint observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), received on 1 September 2015, which refer to matters examined by the Committee in the present observation. Finally, the Committee notes the observations of the International Organisation of Employers (IOE), received on 1 September 2015, which are of a general nature.

Complaint made under article 26 of the Constitution of the ILO for non-observance of the Convention. The Committee notes that, at its 325th Session (November 2015), the Governing Body decided to postpone until its 326th Session (March 2016) the decision to establish a commission of inquiry to examine the complaint made under article 26 of the Constitution of the ILO by various Worker delegates to the 101st Session of the International Labour Conference (June 2012) concerning non-observance by Guatemala of the Convention. In particular, the Committee notes that the Governing Body: (i) once again urged the Government to take, without delay, all the measures necessary to fully implement the roadmap adopted on 17 October 2013 by the Government of Guatemala in consultation with the social partners and the key indicators related to the roadmap adopted by the Tripartite Committee on International Labour Affairs on 15 May 2015; and (ii) invited the tripartite constituents of Guatemala to reach agreement with the Office before the end of 2015 on the nature of the extended mandate of the ILO representation in the country.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 104th Session, June 2015)

The Committee notes the discussion in the Conference Committee on the Application of Standards (hereinafter, the Conference Committee) in June 2015 on the application of the Convention by Guatemala. In particular, the Committee notes that the Conference Committee reached specific and detailed conclusions on: (i) the investigation and conviction of those guilty of murders of trade union leaders and members; (ii) the protection of trade union leaders and members who are under threat; and (iii) the need for the Government, in consultation with the social partners, to submit a bill based on the comments of the Committee, as a matter of urgency, to the Congress of the Republic to bring the legislation into conformity with the Convention.

Finally, the Committee notes the report of the Special Representative of the Director-General in Guatemala, prepared at the request of the Conference Committee.

Trade union rights and civil liberties

The Committee notes with regret that for a number of years, in the same way as the Committee on Freedom of Association, it has been examining allegations of serious acts of violence against trade union officers and members, including numerous murders and the related situation of impunity. The Committee notes the Government’s indication that: (i) of these 70 cases of murder of trade union officers and members registered by the authorities, 13 have given rise to rulings (nine convictions and four acquittals), while 40 other cases are currently being examined by the judicial authorities; (ii) in the framework of the collaboration agreement between the Special Investigation Unit for Crimes against Trade Unionists and the Public Prosecutor’s Office and the International Commission against Impunity in Guatemala (CICIG), 12 cases of investigations of murders identified by the trade union movement in Guatemala were referred to the CICIG on 15 June 2015 so that it could issue recommendations on the conduct of the investigations; (iii) after consulting the social partners, the Public Prosecutor’s Office adopted General Instruction No. 1 2015 in February 2015 on the effective investigation and criminal prosecution of crimes against trade union members and officers of workers’ organizations and other defenders of labour and trade union rights; (iv) the Ministry of the Interior granted nine personal security measures and 63 security measures covering specific locations for trade union officers and members; and (v) the telephone number 1543 to make free calls to denounce acts of violence or threats against human rights defenders, including trade union members, has been operational since 14 May 2015.

The Committee notes that the Autonomous People’s Trade Union Movement of Guatemala and the global unions of Guatemala denounce the murder, on 24 September 2015, of Mynor Rolando Ramos Castillo, a member of the Jalapa Municipal Workers Union (SITRAMJ). The trade unions indicate that the murdered trade unionist was one of the municipal workers awaiting implementation of the reinstatement order issued by the labour court. The Committee also notes that the various trade unions which made observations to the Committee indicate that: (i) the great majority of the perpetrators and all instigators of the 74 murders of trade union officers and members denounced to the ILO are at freedom with impunity; and (ii) not all of the necessary risk assessments have been carried out, and many threats against trade union officers and members have not given rise to any action by the Public Prosecutor’s Office.

The Committee further notes that the report of the Special Representative of the Director-General in Guatemala indicates that: (i) at the request of the Public Prosecutor’s Office, the judicial authorities are preparing administrative agreements to establish specialized courts to examine crimes against trade unionists and penalties for non-compliance by public authorities and private employers who refuse to give effect to rulings relating to freedom of association, including reinstatement orders; and (ii) certain trade union leaders under protection have had to give up that protection, as they could not personally finance the fees of the security guards.

The Committee notes with deep concern the murder of Mynor Rolando Ramos Castillo, a member of the SITRAMJ. The Committee notes that SITRAMJ submitted a complaint, which was examined by the Committee on Freedom of Association, relating to a series of anti-union dismissals (Case No. 2978). Recalling that the absence of judgments against those guilty of crimes against trade union officers and members creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights, the Committee also expresses deep concern at the low number of convictions for the murders of trade union officers and members. While taking due note of certain measures adopted by the authorities to improve the effectiveness of the investigations into the murders of trade union officers and members and to provide effective protection for trade union officers and members who are under threat (particularly the adoption of Instruction No. 01-2015 of the Public Prosecutor’s Office and the establishment of the emergency telephone number), the Committee notes the tragic lack of progress in this area and firmly urges the Government to continue making every effort to: (i) investigate all acts of violence against trade union officers and members with a view to determining responsibilities and punishing the perpetrators, taking fully into consideration in the investigations the trade union activities of the victims; and (ii) provide prompt and effective protection for all trade union officers and members who are at risk. In particular, the Committee requests the Government to intensify its efforts to: (i) develop the collaboration initiated between the Public Prosecutor’s Office and the CICIG; (ii) establish special courts to deal more rapidly with crimes and offences committed against members of the trade union movement; and (iii) increase the budget for protection programmes for members of the trade union movement so that those who are protected do not have to personally finance any of the associated costs. The Committee requests the Government to continue providing information on all of the measures adopted and the results achieved in this regard.

Legislative issues

Articles 2 and 3 of the Convention. The Committee recalls that it has been asking the Government for many years to take measures to amend the following legislative provisions:

• -section 215(c) of the Labour Code, which establishes the requirement for 50 per cent plus one of those working in the sector in order to be able to establish sectoral trade unions;
• -sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity to be able to be elected as a trade union leader; and
• -section 241 of the Labour Code, under the terms of which, in order to be lawful, strikes have to be called by a majority of the workers and not by a majority of those casting votes; section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996, which provides for the possibility of imposing compulsory arbitration in non-essential services and establishes other obstacles to the right to strike; and sections 390(2) and 430 of the Penal Code and Decree No. 71-86, which establish labour, civil and criminal penalties in the event of a strike by public officials or workers in certain enterprises.

In addition, the Committee has been requesting the Government for many years to take measures to ensure that various categories of public sector workers (engaged under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

The Committee recalls that in the 2013 roadmap, the Government undertook to submit to the Tripartite Committee on International Labour Affairs the necessary draft legislative reforms and indicated that the National Congress would adopt the corresponding legislation.

The Committee notes from the Government’s report and from the observations of the social partners that: (i) in 2015, the Labour Commission of the Congress held two working meetings with the social partners to obtain their views on the reforms requested by the Committee; (ii) on 3 September 2015, workers’ organizations submitted to the Office of the Minister of Labour new draft reforms to the Labour Code, including the amendments requested by the Committee in relation to the Convention; (iii) the employers’ organizations considered it necessary to continue analysing the viability of the Committee’s recommendations and supported the need for a comprehensive legislative reform; and (iv) the Tripartite Committee on International Labour Affairs made a request on 24 September 2015 to the Representative of the Director-General of the ILO in Guatemala for the appointment of an expert to provide technical assistance to constituents in the process of legislative reform. While welcoming the request made to the ILO for technical assistance, the Committee recalls that it has been urging the Government for many years to take the necessary measures for the adoption of the legislative reforms referred to above. The Committee therefore expresses the firm hope that it will be able to note the adoption of these amendments in the Government’s next report.

Application of the Convention in practice

Registration of trade unions. As in previous years, the Committee notes the recurrent observations by trade unions concerning obstacles to the registration of trade unions. The Committee also notes that, within the framework of the complaint procedure for non-observance by Guatemala of the Convention made under article 26 of the Constitution of the ILO: (i) the ILO Governing Body included in June (GB.324/INS/4) and November (GB.325/INS/8) 2015 the unimpeded registration of trade union organizations by the Ministry of Labour and Social Welfare among the priority issues that continue to require further urgent action by the Government; (ii) the Government provided the Governing Body with the following statistics on the registration of trade unions since 2013: 52 applications for registration in 2013, resulting in the registration of 17 legal personalities; 35 applications in 2014, resulting in 19 registrations; and 56 applications in 2015, resulting in 30 registrations. The Committee also notes the conclusions and recommendations of the Committee on Freedom of Association in November 2015 in the context of Case No. 3042 relating to the refusal to register 57 trade unions. The Committee notes that the Committee on Freedom of Association, in addition to the legislative issues raised above in the observation (requirements for the establishment of sectoral trade unions, the exclusion of precarious state workers from the benefit of the right to freedom of association), noted: (i) the excessive duration and complexity of the registration process; (ii) the frequency with which the labour administration requests substantive changes to statutes, which affects trade union independence; and (iii) the excessively broad interpretation by the labour administration of the concept of workers in managerial positions and in positions of trust.

The Committee once again expresses deep concern at the obstacles to the registration of trade unions. The Committee therefore once again urges the Government to eliminate the various legislative obstacles to the freedom to establish trade unions, as indicated above, and, in consultation with the trade union confederations and employers’ organizations of the country, and with the support of the Special Representative of the Director-General in Guatemala, to revise the procedure for processing applications for registration with a view to adopting an approach in which any substantive problems and formal issues that arise can be resolved very rapidly with the founding members of the trade unions, and to facilitate as soon as possible the registration of trade unions. The Committee requests the Government to provide information on the initiatives taken and the results achieved in this regard.

Settlement of disputes relating to freedom of association and collective bargaining. The Committee welcomes the activities of the Conflict Resolution Committee on Freedom of Association and Collective Bargaining (hereinafter the Conflict Resolution Committee), established within the context of the roadmap with the support of the Special Representative of the Director-General of the ILO in Guatemala. The Committee notes the indication by the CACIF that 17 cases are being reviewed by the Conflict Resolution Committee, of which two are related to the private sector. With regard to the mediation concerning Case No. 3040 of the Committee on Freedom of Association, the CACIF indicates that the Conflict Resolution Committee has assessed very positively the progress made in resolving the violation of the right to freedom of association. The Committee trusts that the Conflict Resolution Committee will continue to be strengthened and will contribute to resolving the many cases of denunciations of violations of the Convention reported by trade unions.

Awareness-raising campaign on freedom of association and collective bargaining. The Committee welcomes the launch in the official national media on 30 October 2015 of an awareness-raising campaign on freedom of association, the content of which was prepared with ILO support, and was agreed to by the tripartite partners. With a view to ensuring that the campaign reaches out broadly to the population, the Committee invites the Government to disseminate the campaign in the mass media in the country and to provide information on this subject.

Maquila sector. Noting the absence of information provided by the Government on the application of the Convention in the maquila (export processing) sector, the Committee once again requests the Government to: (i) intensify its efforts to guarantee and promote full compliance with trade union rights in this sector; (ii) give special attention to the maquila sector in the context of the awareness-raising campaign; and (iii) continue to provide information on the exercise in practice of trade union rights in this sector.

Finally, the Committee welcomes the ILO project financed by the Directorate-General for Trade of the European Commission to support beneficiary countries of the Generalized System of Preferences (GSP+) to implement effectively international labour standards, with Guatemala being one of the four countries targeted by the project.

Taking due note that a new Government will enter office in January 2016, the Committee trusts that the Government will take all the necessary measures to resolve the serious violations of the Convention noted by the ILO supervisory bodies and will take full advantage of the opportunity of the technical assistance provided to the country by the Office as well as of the resources available through international cooperation.

[The Government is asked to reply in detail to the present comments in 2016.]

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the observations from the International Trade Union Confederation (ITUC), the General Confederation of Workers of Guatemala (CGTG), the Guatemalan Union, Indigenous and Peasant Movement (MSICG), and the Trade Union of Workers of Guatemala (UNSITRAGUA), received on 1, 3 and 22 September 2014. The observations refer to subjects which are already being examined by the Committee, in particular, allegations of extremely serious acts of violence which are affecting the trade union movement.

The Committee also notes the observations from the International Organisation of Employers (IOE), received on 1 September 2014. The Committee further notes the joint observations from the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) and the IOE, received on 28 August 2014, in which the organizations express their concern at the climate of violence affecting the country but also express their appreciation of: (i) the measures adopted by the Public Prosecutor’s Office in this respect; (ii) the report of the International Commission against Impunity in Guatemala (CICIG) relating to the violent deaths of trade unionists and the outcome thereof; and (iii) the establishment of the Committee for the Settlement of Disputes in the area of Freedom of Association and Collective Bargaining.

Complaint made under article 26 of the ILO Constitution concerning non-observance of the Convention

The Committee notes that at its 322nd Session (November 2014), the ILO Governing Body decided to defer until its 323rd Session (March 2015) the decision whether to appoint a commission of inquiry to examine the complaint submitted under article 26 of the ILO Constitution by a number of worker delegates to the 101st Session (June 2012) of the International Labour Conference concerning non-observance of the Convention by Guatemala. The Governing Body’s decision was based on the information provided by the Government and the employers’ and workers’ organizations of Guatemala, and on the information gathered by the ILO mission (hereinafter, the mission) which was undertaken from 8 to 11 September 2014, in relation to the follow-up to the “roadmap” adopted on 17 October 2013 by the Government of Guatemala in consultation with the country’s social partners, with a view to accelerating the implementation of the Memorandum of Understanding (MoU) concluded on 26 March 2013 between the Workers’ group of the ILO Governing Body and the Government of Guatemala.

Trade union rights and civil liberties. The Committee notes with regret that for a number of years, like the Committee on Freedom of Association (CFA), it has been dealing with allegations of serious acts of violence against trade union officials and members, and the related situation of impunity. The Committee again notes that, in the context of Cases Nos 2445, 2540, 2609, 2768 and 2978, the CFA notes with deep concern that the allegations are extremely serious and include numerous murders (58 murders have been examined so far by the CFA since 2004) and acts of violence against trade union leaders and members, in a climate of persistent impunity.

The Committee notes that the Guatemalan trade union federations indicated to the ILO mission that: (i) there is no significant progress in the investigations into acts of violence against trade unionists reported to the ILO; (ii) the situation of impunity with regard to the murders of trade unionists; (iii) the launch of the effective criminal prosecution of crimes against trade unionists, which had been discussed from 2013 onwards and agreed upon by the trade union committee and the Chief Public Prosecutor, has not taken place; (iv) the trade unions have not been called upon at any stage of the criminal proceedings relating to the murders of trade unionists, nor have they been able to appear as complainants in those proceedings; (v) the Protocol for the Implementation of Immediate and Preventive Security Measures for Human Rights Activists in Guatemala, presented by the Ministry of the Interior in August 2014, does not mention trade unionists or trade union activities; (vi) on several occasions the Ministry of the Interior announced the launch of a hotline for reporting crimes against trade unionists but this has never become operational; and (vii) the CICIG report on the murders of 58 trade union officials and members brought to the attention of the ILO bears witness to the impunity that exists in Guatemala.

The Committee notes with deep concern that, according to the information provided to the mission by the Autonomous Popular Trade Union Movement of Guatemala and the Coordinating Committee of the Global Unions in Guatemala, 16 trade unionists were murdered between 2 January 2013 and 20 August 2014. The Committee notes that the Public Prosecutor’s Office informed the mission that all the cases are being investigated, that an arrest warrant exists with regard to one of them and that an arrest warrant is being requested in relation to another.

The Committee notes the Government’s statement that it is taking all possible measures to combat violence and impunity and that it refers in particular to the following:

• -With respect to the list of 70 murders of trade union officials and members (58 cases examined to date by the CFA and 12 additional cases since 2013), the Public Prosecutor’s Office indicates that: 42 cases are under investigation; eight cases resulted in convictions; three cases resulted in acquittals; in 11 cases arrest warrants were issued; in two cases arrest warrants were requested; in two cases the criminal prosecution was discontinued; one case was dismissed; and in one case the hearing was awaited.
• -Further to the collaboration agreement concluded with the Public Prosecutor’s Office in 2013, the CICIG submitted a report on 31 July 2014 entitled “Status of investigations into the deaths of trade unionists in Guatemala”, in which the CICIG reviewed the investigation files established by the Public Prosecutor’s Office. In relation to the content of the report, the Government emphasizes that: (i) the CICIG confined its analysis to 37 cases in which the files of the Public Prosecutor’s Office contained evidence of the trade union status of the victims; (ii) in six of the 37 cases, there are definite or probable links between the motive for the killing and the victim’s trade union activities; (iii) the CICIG made suggestions for improving the investigation methods of the Public Prosecutor’s Office; (iv) most of the deaths occurred in locations in the country that are known for being particularly violent; and (v) there is no proof, at least from the survey under consideration, of systematic elimination of trade union members in Guatemala.
• -The Special Investigation Unit for Crimes against Trade Unionists has been strengthened (from five members in 2011 to 12 members in 2014). An order has been issued to transfer all cases of crimes against trade unionists which are under investigation in the country to this specialist unit.
• -In line with the agreement signed on 30 August 2013 between the Public Prosecutor’s Office and the trade union organizations, the trade union committee at the Public Prosecutor’s Office has met on six occasions.
• -Discussions are under way with the trade unions regarding a launch of the effective criminal prosecution of crimes committed against trade unionists.
• -On 1 August 2014, Ministerial Agreement No. 550-2014 was issued, amending the previous agreement of 2013, which enables trade union officials and members to be participants, and not just observers, in the Standing Trade Union Technical Committee on Comprehensive Protection.
• -Seven trade unionists have been granted protective measures, and three more requests for protection have been received.
• -A total of 3 million Guatemalan quetzals (approximately US$384,000) have been allocated for the protection of trade unionists, and in 2015 a request will be made to increase the budget.
• -In September 2014, a framework cooperation agreement was signed between the judiciary, the Public Prosecutor’s Office, the Ministry of the Interior and the Ministry of Labour and Social Welfare, which provides for the establishment of an inter-institutional coordinating group, whose function will be to expedite and exchange information on crimes committed against unionized workers.
• -Collaboration is continuing with the ILO with regard to training for investigators and prosecutors at the Public Prosecutor’s Office in the area of international labour standards.

Lastly, the Committee notes that the mission interviewed a CICIG representative, who indicated that the CICIG merely reviewed, on the basis of available information, the investigations conducted by the Public Prosecutor’s Office and did not undertake investigations itself, and that the investigation criteria should be reviewed in order to determine whether the murders in question are linked to the victims’ trade union activities. Moreover, the Chief Public Prosecutor informed the mission that the CICIG report is not definitive and is merely an additional tool for use by investigators at the Public Prosecutor’s Office. While taking due note certain measures taken by the authorities to improve the effectiveness of the investigations into the murders of trade union officials and members (strengthening of the Special Investigation Unit for Crimes against Trade Unionists, coordination between the various ministries and public institutions), the Committee strongly urges the Government to continue making every effort to: (i) investigate all acts of violence against trade union officials and members, including those reported in 2013 and 2014, with a view to apportioning responsibility and punishing the perpetrators, taking the victims’ trade union activities fully into consideration in the investigations; and (ii) provide prompt and effective protection for trade union officials and members who are at risk. The Committee requests the Government to continue providing information on all the measures taken and the results achieved in this respect.

Articles 2 and 3 of the Convention. Legislative issues. The Committee recalls that it has been asking the Government for many years to take steps to amend the following legislative provisions:

• -section 215(c) of the Labour Code, which establishes the requirement for 50 per cent plus one of those working in the sector, in order to be able to establish sectoral trade unions;
• -sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity, to be able to be elected as a trade union leader;
• -section 241 of the Labour Code, under the terms of which, to be legal, strikes should be called by a majority of the workers and not by the majority of those casting votes; section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996, which provides for the possibility of imposing compulsory arbitration in non-essential services and specifies other obstacles to the right to strike; and sections 390(2) and 430 of the Penal Code and Decree No. 71-86, which establish labour, civil and criminal penalties in the event of a strike by public officials or workers in certain enterprises.

In addition, the Committee has been asking the Government for many years to take measures to ensure that various categories of public sector workers (engaged under item 029 and other headings of the budget) enjoy the guarantees afforded by the Convention.

The Committee recalls that, by virtue of the 2013 “roadmap”, the Government undertook to submit to the Tripartite Committee on International Labour Affairs the necessary draft legislative reforms and indicated that the National Congress would adopt the corresponding legislation. The Committee notes the information provided by the Government and the mission report, which indicates that: (i) on 10 December 2013, the Government submitted three draft reforms to the tripartite constituents (the Government attached copies of the drafts to its report); (ii) the social partners presented their own proposals for reform; and (iii) in view of the impossibility of reaching tripartite agreement on the legislative reforms, the Government referred the social partners’ reform proposals and the relevant comments of the Committee to the National Congress. The Committee notes that the trade union organizations claimed to the mission that the Government had not submitted any draft legislation to bring national law into line with the Convention.

While observing that the bills drafted by the Government do not enable the legislation to be brought into line with the Convention, in respect of most provisions that are the subject of reform, the Committee notes that during the mission a Declaration of Intent was signed between the National Congress and the ILO International Labour Standards Department, which envisages activities relating to international labour standards and technical assistance in relation to the drafting of labour legislation. In view of the above information, the Committee expresses the strong hope that the National Congress will adopt as soon as possible the legislative reforms requested by the Committee. The Committee requests the Government to provide information in this respect.

Application of the Convention in practice. The Committee welcomes the establishment of the Committee for the Settlement of Disputes in the area of Freedom of Association and Collective Bargaining, which was set up in the context of implementation of the roadmap with the assistance of the Special Representative of the ILO Director-General in Guatemala. The Committee trusts that this body, which is of a tripartite nature and is directed by an independent mediator, will contribute towards settling the numerous cases of violation of the Convention reported by the trade union organizations.

Registration of trade union organizations. The Committee notes the recurrent observations from the trade union organizations regarding obstacles to trade union registration. The Committee notes in particular: (i) objections to the labour administration’s practice of referring to the employer the list of founders of the trade union which is being established in order to verify that they belong to the enterprise; and (ii) reports of numerous cases in which registration is denied because the union membership includes public employees on precarious contracts. The Committee requests the Government to ensure that the aforementioned practices in the registration process are abolished and that the cases reported by the trade union organizations are examined in the context of the Committee for the Settlement of Disputes in the area of Freedom of Association and Collective Bargaining, so that the issues can be settled quickly. The Committee requests the Government to provide information on the results achieved in this respect.

Maquila sector. The Committee recalls that for some years it has been noting the comments from trade unions concerning serious problems of application of the Convention in relation to trade union rights in the maquila (export processing) sector. The Committee notes the Government’s indication that there are three active enterprise unions in this sector. In view of the above, the Committee requests the Government to intensify its efforts to ensure full respect for trade union rights in the maquila sector. The Committee invites the Government, in the context of the awareness-raising campaign which it undertook to implement in 2013, to give special attention to the maquila sector and to continue providing information on the exercise in practice of trade union rights in this sector.

[The Government is asked to reply in detail to the present comments in 2015.]

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Complaint under article 26 of the ILO Constitution concerning non-observance with the Convention (essentially referring to serious acts of anti-union violence and legal provisions that are incompatible with the requirements of the Convention)

The Committee notes that, following the lodging of the complaint, a Memorandum of Understanding (MoU) was concluded on 26 March 2013 between the Government of Guatemala and the Chairperson of the Workers’ group of the ILO Governing Body. The Committee notes that, under the terms of the MoU, the Government undertakes, among other steps, to take the necessary measures to: (i) determine responsibilities and penalize the perpetrators and instigators of the murders of trade unionists; (ii) provide effective protection to trade union leaders and members against violence and threats; (iii) promote raised awareness and the reconciliation of the social actors within the context of freedom of association and collective bargaining; and (iv) amend the legislation to give effect to the comments of the Committee concerning the Convention.

The Committee also notes that, following the conclusion of the MoU, a Special Representative of the Director-General of the ILO assumed office in the country in July 2013. In addition, with a view to evaluating progress in the application of the MoU, an ILO high-level tripartite mission (hereinafter, the mission) visited Guatemala from 23 to 27 September 2013 and submitted its conclusions to the Governing Body at its 319th Session (October 2013). The Committee notes that, following the mission, a “roadmap” was adopted with tripartite support in which specific timelines were established to facilitate the implementation of the MoU. Taking this information into account, the Governing Body has postponed the decision to establish a Commission of Inquiry until its 320th Session (March 2014).

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 102nd Session, June 2013)

The Committee notes the discussion on the application of the Convention held by the Conference Committee on the Application of Standards in June 2013. The Committee notes that in its conclusions the Conference Committee emphasized the urgency of the full implementation of the MoU and made specific recommendations identified at appropriate places in this observation.

Comments from workers’ and employers’ organizations. The Committee notes the comments of the International Trade Union Confederation (ITUC), the General Confederation of Workers of Guatemala (CGTG), both dated 30 August 2013, and the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG), dated 3 September 2013, which refer in particular to extremely serious acts of violence affecting the trade union movement.

The Committee also notes the comments of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), dated 28 August 2013, expressing concern at the climate of violence affecting the country, but assessing positively the measures taken by the Office of the Public Prosecutor, the Government and the judicial authorities in this respect. The CACIF adds that ways are being found to resolve the lack of conformity between national law and practice, on the one hand, and the content of the Convention, on the other.

Trade union rights and civil liberties. The Committee regrets that for several years it has, like the Committee on Freedom of Association, been examining allegations of serious acts of violence against trade union leaders and members and the related situation of impunity. The Committee notes that, in the context of Cases Nos 2445, 2540, 2609 and 2768, the Committee on Freedom of Association has noted with increasing concern that the allegations are extremely serious and include many murders (58 to date since 2004) and acts of violence against trade union leaders and members, in a climate of total impunity.

The Committee notes with deep concern the comments of the ITUC, the Autonomous Popular Trade Union Movement of Guatemala, the Coordination of Global Trade Unions and the MSICG alleging further murders of trade union leaders and members since the beginning of 2013 (the number of which is reported to be between two and nine) and the persistence of the situation of impunity. The Committee also notes that during the discussion in the Conference Committee on the Application of Standards information was provided concerning the murder of seven trade union leaders and members since the beginning of the year. The Committee notes that the Conference Committee, in its conclusions, expressed regret at these new allegations and urged the Government to continue taking the steps necessary to provide protection for trade union leaders and members under threat and to bring an end to impunity.

The Committee notes the following information provided by the Government in its report and gathered during the mission’s visit:

• -of the total of the 58 murders of trade union leaders and members denounced to the CFA, 28 have been referred to the criminal courts (verdicts have been issued in five cases, with one conviction to a sentence; in 13 cases arrest warrants have or will shortly be issued; in six cases, an indictment has been issued or the trial is awaited; and in four cases the penal responsibility expired due to the death of the accused); in another 21 cases the investigation is closed, while for the last nine cases investigations are continuing;
• -the Office of the Public Prosecutor considers that of the 58 murders denounced to the CFA, 16 victims were trade union leaders and 14 were trade union members, while there was no evidence in the remaining cases that the victims were members of any trade union organization. In addition, the Office of the Public Prosecutor considers that two of the murders were clearly related to the trade union activities of the victims, but that in the majority of the cases the murders were related to common criminality;
• -on 24 September 2013, a collaboration agreement was concluded between the Office of the Public Prosecutor and the International Commission against Impunity in Guatemala (CICIG) with a view to strengthening the capacities of the Office of the Public Prosecutor for the analysis and investigation of cases of violence against trade union leaders and members. The CICIG informed the mission that 22 of the 58 murders referred to above were forwarded to it for an analysis of the investigations carried out up to now and, where appropriate, for recommendations to be made to the Office of the Public Prosecutor on any additional investigations that might be necessary;
• -the Office of the Public Prosecutor signed an agreement on 30 August 2013 with the Autonomous Popular Trade Union Movement of Guatemala and the Coordination of Global Trade Unions in Guatemala formalizing the trade union working group of the Office of the Public Prosecutor, which is dedicated to investigations relating to acts of violence against trade union leaders and members;
• -training activities for investigators and prosecutors of the Office of the Public Prosecutor on international labour standards are continuing; and
• -the Standing Technical Trade Union Committee on Comprehensive Protection, which is composed of the authorities of the Ministry of the Interior and the trade union organizations referred to above and is dedicated to preventing crimes against trade union leaders and members and addressing specific acts of violence affecting the trade union movement, is operating regularly with monthly meetings. The Ministry of the Interior has provided in recent months various protection measures for members of the trade union movement in jeopardy.

The Committee also notes that the Autonomous Popular Trade Union Movement of Guatemala and the Coordination of Global Trade Unions in Guatemala made the following comments to the mission: (i) despite the measures adopted by the authorities, there has only been one conviction and the investigations have been closed in a large number of cases; (ii) the trade unions do not share the opinion expressed by the Office of the Public Prosecutor that the murders of trade unionists were crimes of passion or of common criminality; (iii) the protection measures to guarantee the safety of trade union leaders and members are inadequate or non-existent; (iv) the murders of trade union leaders and members committed in 2011, 2012 and 2013 should be included in current investigations; and (v) the measures adopted by the authorities lack the support of a state policy aimed at the respect of freedom of association.

The Committee finally notes the following conclusions of the mission relating to acts of violence against the trade union movement:

• -“The mission observed that the measures taken ... could be conducive to expediting and completing the investigations. However, the mission regretted that these measures had not, in the great majority of cases, yet led to the determination of responsibilities, the prosecution or sanctioning of the perpetrators.” ... “The mission hoped that the re-examination of these cases by the CICIG would provide the reassurance needed to clarify the motives of these murders and to combat impunity. The mission encouraged the intensification of the efforts in this respect and expressed the firm hope that additional resources would be provided to the Office of the Public Prosecutor, particularly to the special unit dealing with crimes against trade unionists.” ... “The mission noted with concern the information it received of the recent murder of trade unionists who had requested protection but had not received it.” ... “The mission considered that the protection measures urgently needed to be strengthened and adequately resourced and that these actions should be included in a national policy to combat anti-union discrimination and the promotion of freedom of association. The policy should be developed in close consultation with the social partners.”

The Committee notes with deep concern the new allegations of murders of trade union leaders and members and other acts of violence against the trade union movement which are reported to have occurred in 2013. While noting certain initiatives taken by the Government and the Office of the Public Prosecutor to accelerate investigations into murders of trade union leaders and members, the Committee urges the Government, in accordance with the conclusions of the mission, to take as a matter of urgency, and in the framework of the “roadmap” referred to above, all the necessary action to: (i) finalize the investigations that are currently being conducted; (ii) investigate all acts of violence against trade union leaders and members, including those denounced in 2013, with a view to identifying responsibilities and punishing those who are guilty, taking fully into consideration in the investigations the trade union activities of the victims; (iii) provide rapid and effective protection to trade union leaders and members who are at risk; and (iv) pursue a national policy of promoting respect for freedom of association. The Committee requests the Government to provide information in its next report on all the measures adopted and the results achieved in this respect.

Legislative issues. The Committee recalls that for many years it has been requesting the Government to take measures to amend the following legislative provisions:

• -section 215(c) of the Labour Code establishing the requirement for 50 per cent plus one of those working in the occupation, in order to be able to establish industry trade unions;
• -sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity, to be able to be elected as a trade union leader;
• -section 241 of the Labour Code, under the terms of which strikes are not called by the majority of those casting votes, but by a majority of the workers; section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996, which provides for the possibility of imposing compulsory arbitration in services which are not essential, and other obstacles to the right to strike; and sections 390(2) and 430 of the Penal Code and Decree No. 71-86, which establish labour, civil and penal sanctions in the event of a strike by public officials and workers in certain enterprises.

In addition, the Committee has been requesting the Government for many years to take measures to ensure that various categories of public sector workers (engaged under item 029 and others of the budget) finally enjoy the guarantees afforded by the Convention. (In its previous comments, the Committee noted rulings in this respect. However, problems continue to arise in practice as the criteria set out in case law have not been transposed into legal texts.)

The Committee notes that the high-level tripartite mission indicated the following:

The mission regretted that to date no progress had been made in this regard. The mission recalled that ... it was the responsibility of the Executive Branch, in consultation with the social partners, to bring to the attention of the legislature the Bills requiring decision, and the responsibility of the legislator to adopt the necessary legislative reforms; ... the mission called for urgent action to bring the national legislation into conformity with Convention No. 87.

The Committee notes that in the “roadmap” the Government undertakes to submit to the Tripartite Commission on International Labour Affairs the necessary draft legislative reforms within 60 days and that the Congress of the Republic will adopt the corresponding legislation within 120 days. Taking this information into account, the Committee firmly hopes that all the necessary measures will be taken to bring the legislation into conformity with the Convention and that the Government will provide information on this matter in its next report. The Committee recalls that the Government may have recourse to the technical assistance of the Office if it so wishes, which may include training and awareness-raising activities on international labour standards for the legislature.

Registration of trade unions. The Committee notes that the Government informed the mission of the accelerated operation of the system for the registration of trade unions, with the average period required having fallen from seven months to one month. However, the Committee also notes the information provided by various trade unions to the mission and various new cases submitted to the CFA concerning obstacles to the registration of trade unions. In this regard, while noting the progress reported by the Government, the Committee requests it to review, within the framework of the Tripartite Commission, the specific cases mentioned by trade unions with a view to ensuring that the problems are resolved rapidly.

The maquila sector. The Committee recalls that for some years it has been noting the comments of trade unions concerning serious problems of application of the Convention in relation to trade union rights in the maquila sector. The Committee notes the Government’s indication concerning the significant increase in labour inspections in the this sector. While noting this information, the Committee requests the Government to continue taking all measures in its power to ensure full respect for trade union rights in the maquila sector. The Committee invites the Government, in the context of the awareness-raising campaign that it has undertaken to conduct, to give special attention to this sector. The Committee also once again requests the Government to continue providing information on the exercise in practice of trade union rights in the maquila sector (the number of active trade unions, number of members, the number of collective agreements and their coverage, complaints of violations of trade union rights and the decisions taken by the authorities, and the number of inspections).

[The Government is asked to reply in detail to the present comments in 2014.]

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Comments by workers’ and employers’ organizations

The Committee notes the comments of the International Trade Union Confederation (ITUC), dated 31 July 2012, referring to matters already under examination by the Committee, and particularly the murder of seven trade union leaders and two trade union members between January and October 2011. The Committee also notes the comments on the application of the Convention made by the Trade Union Confederation of Guatemala (UNSITRAGUA), the General Confederation of Workers of Guatemala (CGTG) and the Trade Unions’ Unity of Guatemala (CUSG), dated 30 August 2012, which refer in particular to numerous allegations of violations of trade union rights in practice, in both the private and public sectors, and to acts of violence against trade unionists, including the murder of a trade union leader in August 2012 (the Committee observes that some of the allegations have been submitted to the Committee on Freedom of Association). The Committee also notes the comments of the Indigenous and Rural Workers’ Trade Union Movement of Guatemala (MSICG) of 31 August 2012 (the MSICG subsequently sent other comments, which were received on 10 September and 3 October 2012, outside the time limits for receiving them) which refer to the murder of a trade union leader in June 2012, allegations concerning acts of violence against leaders of the MSICG, the arrest and the initiation of prosecutions against trade union leaders in a context of the criminalization of the exercise of trade union rights and the policy to weaken the Ministry of Labour and the labour inspectorate. The MSICG also alleges numerous violations of trade union rights in practice, in the public and private sectors, including in maquilas (export processing zones) and industrial free zones. The Committee requests the Government to refer the matters raised by these organizations to the National Tripartite Commission and to provide information in this respect, particularly on the decisions taken.

The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.

Complaint under article 26 of the ILO Constitution

The Committee notes that a group of Workers’ delegates to the 101st Session of the International Labour Conference submitted a complaint in June 2012 under article 26 of the ILO Constitution against the Government of Guatemala for failure to comply with the Convention.

The Committee notes the Government’s indication that the President of the Republic and the authorities have observed with great concern the claim made by the workers, which is based on events that have been occurring for approximately the last 25 years. It adds that the current Government, which took office in January 2012, has adopted measures and taken firm action for transformation and change in the management of labour matters, and in this context has invited the Director-General of the ILO and the Director of the International Labour Standards Department to visit the country and support the efforts that are being made by the new Government for the implementation of the Convention. The Committee notes the Government’s indication that during its first months in office it has made progress in the following principal areas: the implementation of the new national policy for safe, decent and quality employment, and the policy for permanent social dialogue; the budgetary, normative and institutional strengthening of the Ministry of Labour and Social Welfare, including the extension of the coverage of the General Labour Inspectorate; the conclusion of an agreement between the Office of the Attorney-General of Guatemala and the International Labour Standards Department of the ILO establishing relations of cooperation and the exchange of information on matters covered by the ILO supervisory bodies; the broadening of national tripartite dialogue, including the trade union federations and confederations which have been excluded in the recent past, with as its first result the conclusion of the Memorandum of Understanding for the cooperation framework with the ILO, the Decent Work Programme and the Framework Implementation Plan; and coordination between state institutions to give priority to complaints concerning acts of violence against trade unionists and impunity which, unfortunately, also affect the population as a whole.

Acts of violence against trade unionists and the situation of impunity

The Committee recalls that for several years it has been noting in its observations serious acts of violence against trade unionists which have gone unpunished and has requested the Government to provide information on developments in this regard. The Committee notes that in its comments the ITUC, in the same way as the national trade union confederations, continue to highlight serious acts of violence against trade union leaders and members in recent years, including in 2011 and 2012, and describe a climate of fear and intimidation with a view to dismantle existing trade unions and preventing the establishment of new ones. The organizations also emphasize the deficiencies of the labour inspection services and the crisis in the judicial system. The Committee has noted that in recent years many acts of violence have been committed against trade union leaders and members, including murders, death threats and acts of intimidation against trade union members. The Committee observes that the Committee on Freedom of Association (in Cases Nos 2445, 2540, 2609 and 2768) noted with concern that the allegations levelled in the context of its proceedings were extremely serious and included many murders and acts of violence against trade union leaders and members. The Committee recalls that the high-level mission which visited Guatemala from 9 to 14 May 2011 reported as follows:

The mission wishes to recall that the problems of violence referred to by the CEACR are the following:

• – alleged murders of trade union leaders and members over the past five years: 2007: 12; 2008: 12; 2009: 16; 2010: 10; and 2011: two up to the month of May (a few days after the mission, a trade union leader of the SITRABI was murdered);
• – death threats, abductions, raids, etc., alleged over the past four years:

2008: eight death threats, two attacks against the homes of trade union leaders, a raid against trade union premises and a raid against the home of a trade union leader, and two attempted murders of trade union leaders;

2009: 17 death threats against trade union leaders and executive committees, eight cases of physical assault against trade union leaders and members; an attack against trade union premises and an attack against the home of a trade union leader; and a temporary abduction of a trade union leader; and

2010: four death threats, an attempted murder of a trade union leader, an abduction, involving torture and the rape of a trade union leader, an attack against trade union premises, an attack against the home of a trade union leader, and physical assault against a trade union leader.

The mission emphasized to all those with whom it spoke the gravity of the allegations and the figures referred to above, and recalled during its meetings the relevant principles of the supervisory bodies, and particularly that trade union rights can only be exercised in a climate that is free from violence, and it sought solutions to the matters raised by the Committee. The mission also emphasized that the killing or serious injury of trade union leaders and trade unionists requires the institution of independent and expeditious judicial inquiries in order to shed full light, at the earliest date, on the facts and circumstances in which such actions occurred and in this way, to the extent possible, to determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events.

The mission observed that the situation of violence is generalized, affects trade unionists, employers and other categories and results in around 10,000 violent deaths a year (according to data provided by the Presidential Coordinating Commission for Executive Policy in the Field of Human Rights (COPREDEH)) in a country of 11,237,196 inhabitants (according to data provided by the Ministry of Labour). The murder figures for trade union leaders over the past five years show that they are a particularly vulnerable category, although at the present time the most affected sector is that of bus drivers and passengers (on the last day of its work, the mission was able to observe this directly by witnessing an attack with firearms on a bus in which five persons died). The mission was informed by various sources that the main perpetrators of acts of violence are related to common crime, organized crime and, recently, drug trafficking, a crime that has been spreading particularly rapidly in recent years in Guatemala and other Central American countries. The mission was able to observe that a large number of people in the country carry weapons. The trade union confederations and the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) emphasized the weakness of the security services and the judicial system, their concern at the level of violence and their desire to contribute to the eradication of violence and the restoration of the rule of law. In this context, at the beginning of its work, the mission found that the authorities were only in a position to provide information on investigations concerning a small number of the trade union leaders and members who had been murdered. In various meetings, including those held with certain magistrates and other authorities, the mission was informed that certain murders might be of an anti union nature. The mission observed that only once investigations have been conducted and those responsible for carrying out, planning and instigating the acts of violence against trade union leaders and members could their anti-union nature be ascertained, and that for that reason it is urgent to conduct expeditious and exhaustive investigations in all cases. The lack of full and up-to-date information on developments in the investigations concerning trade unionists was a matter of concern for the mission, as was the lack of coordination between State services following up these crimes. For this purpose, the Tripartite Commission on Labour Affairs called for the restoration of the specialized prosecution service for crimes against trade unionists and asked the mission to express its concern to the Office of the Attorney-General in relation to this situation. Sharing these concerns, the mission requested the Public Prosecutor to establish a special prosecution service responsible for investigating these crimes and for an acceleration of the investigations of the 52 murders denounced. The Public Prosecutor appointed a few months ago, with a background in the field of human rights, welcomed these proposals, although the proposal for the restoration of the specialized prosecution service was subject to the outcome of the budget discussions in the Congress. The mission also called on the International Commission against Impunity in Guatemala (CICIG) to collaborate with the Office of the Public Prosecutor to investigate and shed light on these cases. The mission is pleased to note that it received an affirmative response from both parties and the undertaking to carry out these investigations. The mission indicated to the authorities the importance that these investigations were undertaken taking duly into account the alleged anti-union nature of the cases, as in recent years there has been a certain tendency in investigations to give priority to other motives, and particularly those based on “passion”. The Public Prosecutor expressed great interest in the possibility of concluding a cooperation agreement with the ILO, which would include activities to provide training to prosecutors on typical contexts of anti-union violence and the factors which give rise to such violence (the Public Prosecutor will soon contact the ILO for this purpose). The mission also suggested that representatives of the Office of the Attorney-General should participate regularly in the meetings of the Tripartite Commission on Labour Affairs with a view to providing information on progress in the investigation of cases of murders of trade union leaders and members. The Office of the Attorney-General and the Tripartite Commission on Labour Affairs welcomed the proposal. The mission noted the urgent call by society, including employers’ and workers’ organizations, to address more decisively the impunity and corruption existing in the country and considers that the authorities need to devote much higher levels of resources and take effective measures to eradicate the corruption that permeates the administration of justice. At present, the impunity rate is 98 per cent, according to official sources. The CACIF and the trade unions agree on the need for criminal and labour court procedures concerning anti-union practices to be expeditious and effective.

The Committee also notes with deep concern that, according to the ITUC and the trade union confederations, since the visit by the mission murders have continued in 2011 and 2012.

The Committee notes the Government’s indication in a communication addressed to the Committee on Freedom of Association and in its report to the Committee of Experts that: (1) the Office of the Attorney-General, in compliance with its constitutional mandate to ensure strict compliance with the laws of the country and its functions in relation to criminal prosecution, has been a member this year of the working group convened by the Ministry of Labour, together with the judicial authorities and the Ministry of Foreign Affairs, to monitor the application of the Convention; (2) the Office of the Attorney-General also accepted the invitation by the Tripartite Commission on International Labour Affairs, in which representatives of trade unions and representatives of employers participate, and the Ministry of Labour, to provide information on the progress in the cases denounced at the national level and with the ILO; (3) a group of investigators and support staff were recruited with a view, under the direction of the prosecutors responsible for each case, for pushing forward the investigation of the cases so that they can be resolved in a reasonable time and common factors identified in each case; (4) an overall study was undertaken of all the cases to establish whether there existed a common objective of eliminating trade union leaders; (5) the 58 cases under examination are distributed among 25 offices of public prosecutors, with the majority being assigned to the special prosecution service established to investigate crimes against trade unionists; (6) the examination of the cases found that 32 victims could be trade union members or leaders, while in 17 cases there is no documentation or evidence to prove that the persons concerned were members of a trade union, five cases are related to persons connected with municipal markets and four were members of community organizations; (7) in 45 cases, the motive for the murders is related to common crime, in two cases it was found that the death had its origins in the trade union struggles in which the victims were engaged, four died in relation to social claims, five persons perished due to confrontations between municipal authorities and market stallholders, one person died for political reasons and one in the context of the intervention by the state security forces; (8) of the 58 cases, rulings have been handed down or progress is being made in 24; (9) as a demonstration of the will of the Government and the Office of the Attorney-General, on 10 July a protocol agreement was concluded between the Office of the Attorney-General of Guatemala and the International Labour Standards Department of the ILO with the principal objectives of establishing cooperative relations, and a workshop was held on international labour standards, with emphasis on freedom of association, collective bargaining and impunity; the workshop was attended by the Sub-secretariat for Political Crime of the Office of the Attorney-General, seven district prosecutors, a branch prosecutor, nine investigators and 15 auxiliary investigators from throughout the Republic; and (10) since the establishment of the special investigation service for crimes against trade unionists, measures have been taken to: (i) receive complaints on the premises of the investigation service; (ii) security measures are granted immediately to trade unionists lodging a complaint of a threat; (iii) in the event of murders of trade union members, extended competence is requested so that these cases can be referred to higher-risk courts; and (iv) in the event of raids on the residences of trade union members or trade union premises, security measures are requested from the Ministry of the Interior around the locations where they are required.

The Committee notes all of this information. The Committee welcomes the Government’s indications concerning the re-establishment of the special investigation service for crimes against trade union members. The Committee also welcomes the fact that, further to the conclusions of the high-level mission which visited the country in 2011, a cooperation agreement has been concluded between the Office of the Attorney-General and the ILO and that a first activity for the training of investigators has already been undertaken in relation to the typical context of anti-union violence and the factors giving rise to such violence. The Committee hopes that, in accordance with the cooperation agreement, this type of activity will continue to be carried out. The Committee once again draws the Government’s attention to the principle that a genuinely free and independent trade union movement cannot develop in a climate of violence and uncertainty; freedom of association can only be exercised in conditions in which fundamental human rights, in particular those relating to human life and personal safety, are fully respected and guaranteed; the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The Committee also recalls that excessively slow proceedings and the absence of judgments against the guilty parties creates, in practice, a situation of impunity, which aggravates the climate of violence and insecurity, which is extremely damaging to the exercise of trade union rights and incompatible with the requirements of the Convention.

The Committee once again deplores the murders of trade unionists and other acts of anti-union violence and once again firmly requests the Government to: (1) bring to justice those responsible for the violence in order to counter impunity; (2) ensure the protection of trade unionists under threat of death; (3) convey to the Office of the Public Prosecutor and the Supreme Court of Justice its deep concern at the slowness and inefficiency of the justice system and its recommendations concerning the need to elucidate all murders and crimes committed against trade unionists so as to punish the perpetrators; (4) ensure the allocation of sufficient resources for these objectives with the consequent increase in human and material resources, and ensure effective coordination between the various state bodies which may be called upon to intervene in the judicial system, and to provide training for investigators; and (5) as affirmed by the new Government, to give absolute priority to these matters in government policy.

The Committee expresses the firm hope that the Government will take all the necessary measures to guarantee full respect for the human rights of trade unionists and that it will continue to provide protection measures to all trade unionists who so request. The Committee firmly hopes that the investigations which, according to the Government, are being carried out by the Office of the Attorney-General, will be finalized in the near future and will result in the determination of those responsible for acts of violence against trade union leaders and members, their prosecution and punishment in accordance with the law. The Committee requests the Government to provide information on any developments in this respect.

Legislative problems

The Committee recalls that for several years it has been commenting on the following provisions, which raise problems of consistency with the Convention:

• -restrictions on the freedom to establish organizations (the need, under section 215(c) of the Labour Code, to have 50 per cent plus one of those working in the occupation to establish industry trade unions) and delays in the registration of trade unions, or the refusal to register them. The Committee notes the Government’s indication that: (1) this provision is based on article 102(q) of the Political Constitution, which recognizes the right of workers to establish organizations freely; (2) the constitutional and ordinary legislation protect and recognize the freedom to establish organizations and do not restrict the establishment of industry trade unions, and this section sets out clear rules for the establishment of industry trade unions, based on a qualified majority that is sufficiently representative, which ensures legal security and representativity; (3) the reasons set out comply with the need for the negotiation of the collective agreement, and this section guarantees the majority required for the direct negotiation of the collective agreement; (4) there is no discrimination and no requirement for prior authorization for the establishment of an industry trade union, that is to say that the wish of industry groups to associate is not prohibited; (5) the absence of industry trade unions is due to the lack of interest (for example, for economic reasons), and not to legal restrictions; and (6) in light of the above, effect is given to Article 8 of the Convention. While noting this information, the Committee reiterates that the requirement of a minimum number of members is not in itself incompatible with the Convention, but that the minimum number should be kept within reasonable limits so as not to impede the establishment of organizations. The Committee considers in this respect that the majority required in the above section is too high and could therefore hinder the establishment of an industry-level trade union if the workers decided to establish one;
• -restrictions on the right to elect trade union leaders in full freedom (they need to be of Guatemalan origin and to work in the enterprise or economic activity in order to be elected as a trade union leader, under sections 220 and 223 of the Labour Code). The Committee takes note of the Government’s indication that the legislation is inclusive as it recognizes as being of Guatemalan origin persons originating from the Federation of Central America, for which reason it does not contravene the right to the free choice of trade union leaders, as persons of various nationalities may be elected. While noting that workers who are nationals of the countries of Central America can hold trade union office, the Committee recalls that the national legislation should allow foreign workers, of whatever nationality, to have access to trade union office, at least after a reasonable period of residence in the host country;
• -restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are not declared by the majority of those casting votes, but by a majority of the workers); the possibility to impose compulsory arbitration in the event of a dispute in the public transport sector and in services related to fuel, and the need to determine whether strikes for the purposes of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996); and the labour, civil and penal sanctions applicable in the event of strikes involving public officials or workers in specific enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71-86);
• -the Civil Service Bill: in its previous observation, the Committee noted a Civil Service Bill which, according to UNSITRAGUA and the National Federation of State Workers’ Unions (FENASTEG), requires a percentage that is too high to establish unions and restricts the right to strike. The Committee noted previously the Government’s indication that the Bill had been withdrawn and that in July 2008 and inter-sectoral consultation committee was established to prepare a Bill that is consistent with the needs of the sectors involved; and
• -the situation of many workers in the public sector who do not benefit from trade union rights. These workers, who are under contract under item 029 and others of the budget, should have been recruited for specific or temporary tasks, but are engaged in ordinary and permanent functions and often do not benefit from trade union rights or employment benefits other than wages, and are not covered by social security or by collective bargaining, where it exists. The Committee noted previously that the members of the Supreme Court of Justice indicated to the high-level mission that, in accordance with case law, these workers enjoy the right to organize. Nevertheless, this case law has not been given effect in practice, according to technical assistance reports and the comments of the MSICG.

In this respect, the Committee recalls the conclusions of the 2011 high-level mission, which are as follows:

The mission regrets to note that no progress has been achieved since the previous year in relation to the legislative reforms requested by the CEACR and that the Tripartite Commission on Labour Affairs has not submitted any draft legislation to Congress. The mission reiterated the importance of bringing the legislation into full conformity with the Conventions on freedom of association. The mission forwarded the comments of the CEACR to the Labour Commission of the Congress. The Labour Commission of the Congress expressed the wish that the Tripartite Commission on Labour Affairs should enter into contact with it regularly to address these matters, and the Tripartite Commission agreed. The mission suggested the possibility to the Labour Commission of the Congress to conclude an agreement with the ILO in relation to training on international labour standards and to improve their application; this proposal was received with great interest and it was indicated that the matter would be submitted in the near future to the competent authorities of the Congress. With regard to the situation of the many workers in the public sector engaged under contracts under items 029 and others of the budget, the mission noted that, according to the Supreme Court of Justice, the case law recognizes the right of these workers to organize. The mission also noted that in practice these workers join organizations and in certain State institutions represent 70 per cent of the staff. The mission suggested that the authorities, by means of a circular or a resolution, should remove any doubt on the right to organize of workers engaged under contracts under item 029 of the budget. However, the Minister of Labour expressed reservations for economic and legal reasons.

The Committee noted previously that the Government had established an inter-institutional commission to prepare a Bill on the outstanding legislative matters.

The Committee recalls that, in its 2011 conclusions, the Conference Committee expressed the hope that the Government would be in a position to report substantial progress in the very near future. The Committee regrets to note that, despite requesting improvements in the legislation for many years, there has not been significant progress in the legislative reforms requested, and it considers that much more effort will need to be made. The Committee firmly hopes that, with ILO technical assistance, the Government will be in a position to provide information in its next report on positive developments in relation to the various matters referred to and that tangible progress will be achieved in the near future.

Registration of trade unions. The Committee recalls that in its previous comments it referred to the conclusions of the 2011 high-level mission concerning the obstacles to the registration of trade unions, which read as follows:

The mission emphasized to the Government the need for a rapid solution concerning the registration of the remaining organizations. The mission also suggested the establishment of a proactive registration procedure enabling trade unions with the authorization of their assembly to correct directly in the Ministry legal problems arising during the registration process.

The Committee once again invites the Government to discuss this matter in the Tripartite Commission with a view to adopting an approach that allows the very rapid resolution with those establishing trade unions of any substantive and formal problems that may arise and facilitates in so far as possible the registration of trade unions.

Other matters

The maquila sector. For years, the Committee has been noting the comments of trade unions concerning serious problems in the application of the Convention in relation to trade union rights in the maquilas. The Committee recalls that in its previous comments it noted the conclusions of the 2011 high-level mission, which read as follows:

With regard to the situation of trade unions in the maquila, the mission noted the indication by the authorities that there are 740 enterprises in the sector, six unions and three collective contracts covering 4,600 workers out of a total of 110,000 workers. The mission notes that the number of workers in the maquila has fallen considerably in relation to previous years (around 300,000). The mission also notes the indication by the authorities that it is a sector which has been subject to special attention to verify compliance with labour rights and that there is a special unit of the labour inspectorate that is particularly active in addressing problems in the maquila. The mission considers, based on meetings with trade union federations, which are very concerned at the low level of unionization in the maquila, that training activities on freedom of association and collective bargaining should be intensified in the maquila sector and it encourages the Government to have recourse to ILO technical assistance in this respect.

The Committee once again requests the Government to continue providing information on the exercise in practice of trade unions rights in maquilas (number of trade unions, their membership, number of collective agreements and their coverage, complaints of violations of trade union rights, decisions taken by the authorities and number of inspections). The Committee expresses the hope that the Government will continue to benefit from ILO technical assistance so that full effect is given to the Convention in the maquilas and it requests the Government to provide information on this subject. The Committee requests the Government to refer problems relating to the exercise of trade union rights in the maquila sector regularly to the National Tripartite Commission and to provide information in this regard.

National Tripartite Commission. In its previous comments, the Committee requested the Government to ensure that the composition of the workers’ representation on the Tripartite Commission is based on strict criteria of representativity and it asked the Government to take the necessary measures for that purpose. The Committee welcomes the Government’s indication that the trade union federations and confederations that had been excluded recently have now been included.

Statistics and other matters. The Committee noted previously that, according to the report of the 2011 ILO high-level mission, it would be useful for the Government to provide clearer statistics confined to trade unions that are in operation, and not those that have ceased to operate, and making a distinction between the public and private sectors, with a view to indicating the level of trade union membership and the coverage of collective bargaining in both sectors. The Committee considers that such data can also be useful in determining the representativity of trade union confederations. The Committee once again requests the Government to produce statistics on the unionization rate and the coverage of collective bargaining and on other aspects of trade union activities.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Follow-up to the Conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

The Committee notes the Government’s report, the discussion in the Conference Committee on the Application of Standards in June 2011 and the 13 cases before the Committee on Freedom of Association (Cases Nos 2203, 2361, 2445, 2609, 2673, 2708, 2709, 2768, 2811, 2840, 2859, 2869 and 2872). The Committee also notes the comments on the application of the Convention made by the Trade Union Confederation of Guatemala (UNSITRAGUA), the General Confederation of Workers of Guatemala (CGTG) and the Trade Union Unity of Guatemala (CUSG) (29 August 2011), and the comments of the Indigenous and Rural Workers’ Trade Union Movement of Guatemala for the Defence of Workers’ Rights(MSICG) (30 August 2011). The Committee also notes the communication of the International Trade Union Confederation (ITUC), dated 4 August 2011. The Committee requests the Government to submit the matters raised by these organizations to the National Tripartite Commission and to the other trade union confederations and to provide information in this respect, particularly on the decisions that are taken. The Committee notes the report of the mission requested by the Committee on the Application of Standards in June 2010, involving the visit of an important and internationally recognized personality with high-level ILO support to examine outstanding issues and make recommendations, which took place from 9 to 14 May 2011.

Acts of violence against trade unionists and situation of impunity

The Committee recalls that for several years it has been noting in its observations serious acts of violence against trade unionists which have gone unpunished and has requested the Government to provide information on developments in this regard.

The Committee notes that in its comments the ITUC, in the same way as the national trade union confederations, continue to highlight serious acts of violence against trade union leaders and members in recent years, including in 2011, and describe a climate of fear and intimidation with a view to undermining existing trade unions and preventing the establishment of new ones. The organizations also emphasized the deficiencies in labour inspection and the crisis in the judicial system. The Committee previously expressed the hope that, in the context of the tripartite agreement concluded during the high-level mission of 2009, all the matters raised with the ILO by national and international federations would be examined and addressed in a tripartite context by the Government and the social partners within the framework of the Tripartite Commission on International Labour Affairs, as well as the Legal Reform Subcommission and the Mechanism for Rapid Intervention in Cases.

The Committee has been noting in recent years the occurrence of numerous acts of violence against trade union leaders and members, ranging from murders, death threats and acts of intimidation to abductions, torture and armed assault using firearms or knives. There have also been cases of unauthorized entry into the homes of trade unionists and trade union premises. According to the trade unions, in certain cases the State has not provided the security measures requested by those under threat and the Office of the Public Prosecutor is not investigating all of the cases indicated, as some complaints have not even been entered into its database. The issue has also been raised of cases of obstacles or administrative hurdles to the establishment or operation of trade unions, and of unions being destroyed when they are in the process of being established. Over 20,000 workers in the public sector have no employment relationship, but instead a civil contract for professional services, and therefore are without trade union rights. Furthermore, according to the trade unions, trade union activity is being criminalized, with penal action being taken against trade unionists for engaging in peaceful demonstrations, and attacks are made on trade unions in anti-union publications and through smear campaigns. They add that the authorities have promoted workers’ organizations under their control in parallel to those already existing, and they provide the representatives who participate in the Tripartite Commission, even though they have little claim to being representative. With regard to legal action, they emphasize that the slowness of proceedings and the long delays continue to be a problem. Finally, they indicate that the anti-union climate is reflected in the unionization rate (2.2 per cent of the economically active population, of which the public sector accounts for 87.5 per cent).

The Committee notes that the Committee on Freedom of Association has noted with concern that the allegations presented in the cases before it are extremely serious and include numerous murders of trade union leaders and members, one disappearance, acts of violence (sometimes also against the families of trade union members), threats, physical harassment, intimidation, the rape of a family member of a trade unionist, obstacles to granting legal personality to unions, the dissolution of a union, criminal proceedings for carrying out trade union activities, and major institutional failings with regard to labour inspection and the functioning of the judicial authorities, which have created a situation of impunity in labour matters (for example, excessive delays, lack of independence, failure to comply with reinstatement orders issued by the courts) and in criminal matters (for example, Case No. 2445 and two more recent Cases Nos 2609 and 2859) relating to numerous acts of anti-union violence presented to the Committee on Freedom of Association.

The Committee wishes to refer to the conclusions of the high-level mission which visited Guatemala from 9 to 14 May 2011, which read as follows:

The mission wishes to recall that the problems of violence referred to by the CEACR are the following:

• – Alleged murders of trade union leaders and members over the past five years:
• 2007: 12;
• 2008: 12;
• 2009: 16;
• 2010: 10; and
• 2011: two up to the month of May (a few days after the mission, a trade union leader of the SITRABI was murdered).
• – Death threats, abductions, raids, etc., alleged over the past four years:
• 2008: eight death threats, two attacks against the homes of trade union leaders, a raid against trade union premises and a raid against the home of a trade union leader, and two attempted murders of trade union leaders;
• 2009: 17 death threats against trade union leaders and executive committees, eight cases of physical assault against trade union leaders and members; an attack against trade union premises and an attack against the home of a trade union leader; and a temporary abduction of a trade union leader; and
• 2010: four death threats, an attempted murder of a trade union leader, an abduction, involving torture and the rape of a trade union leader, an attack against trade union premises, an attack against the home of a trade union leader, and physical assault against a trade union leader.

The mission emphasized to all those with whom it spoke the gravity of the allegations and the figures referred to above, and recalled during its meetings the relevant principles of the supervisory bodies, and particularly that trade union rights can only be exercised in a climate that is free from violence, and it sought solutions to the matters raised by the Committee. The mission also emphasized that the killing or serious injury of trade union leaders and trade unionists requires the institution of independent and expeditious judicial inquiries in order to shed full light, at the earliest date, on the facts and circumstances in which such actions occurred and in this way, to the extent possible, to determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events.

The mission observed that the situation of violence is generalized, affects trade unionists, employers and other categories and results in around 10,000 violent murders a year (according to data provided by the Presidential Coordinating Commission for Executive Policy in the Field of Human Rights (COPREDEH)) in a country of 11,237,196 inhabitants (according to data provided by the Ministry of Labour). The murder figures for trade union leaders over the past five years show that they are a particularly vulnerable category, although at the present time the most affected sector is that of bus drivers and passengers (on the last day of its work, the mission was able to observe this directly by witnessing an attack with firearms on a bus in which five persons died). The mission was informed by various sources that the main perpetrators of acts of violence are related to common crime, organized crime and, recently, drug trafficking, a crime that has been spreading particularly rapidly in recent years in Guatemala and other Central American countries. The mission was able to observe that a large number of people in the country carry weapons.

The trade union confederations and the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) emphasized the weakness of the security services and the judicial system, their concern at the level of violence and their desire to contribute to the eradication of violence and the restoration of the rule of law.

In this context, at the beginning of its work, the mission found that the authorities were only in a position to provide information on investigations concerning a small number of the trade union leaders and members who had been murdered. In various meetings, including those held with certain magistrates and other authorities, the mission was informed that certain murders might be of an anti union nature. The mission observed that only once investigations have been conducted and those responsible for carrying out, planning and instigating the acts of violence against trade union leaders and members could their anti-union nature be ascertained, and that for that reason it is urgent to conduct expeditious and exhaustive investigations in all cases. The lack of full and up-to-date information on developments in the investigations concerning trade unionists was a matter of concern for the mission, as was the lack of coordination between State services following up these crimes.

For this purpose, the Tripartite Commission on Labour Affairs called for the restoration of the specialized prosecution service for crimes against trade unionists and asked the mission to express its concern to the Office of the Attorney-General in relation to this situation. Sharing these concerns, the mission requested the Public Prosecutor to establish a special prosecution service responsible for investigating these crimes and for an acceleration of the investigations of the 52 murders denounced. The Public Prosecutor appointed a few months ago, with a background in the field of human rights, welcomed these proposals, although the proposals for the restoration of the specialized prosecution service was subject to the outcome of the budget discussions in the Congress. The mission also called on the International Commission against Impunity in Guatemala (CICIG) to collaborate with the Office of the Public Prosecutor to investigate and shed light on these cases. The mission is pleased to note that it received an affirmative response from both parties and the undertaking to carry out these investigations.

The mission indicated to the authorities the importance that these investigations were undertaken taking duly into account the alleged anti-union nature of the cases, as in recent years there has been a certain tendency in investigations to give priority to other motives, and particularly those based “passion”. The Public Prosecutor expressed great interest in the possibility of concluding a cooperation agreement with the ILO, which would include activities to provide training to prosecutors on typical contexts of anti-union violence and the factors which give rise to such violence (the Public Prosecutor will soon contact the ILO for this purpose). The mission also suggested that representatives of the Office of the Attorney-General should participate regularly in the meetings of the Tripartite Commission on Labour Affairs with a view to providing information on progress in the investigation of cases of murders of trade union leaders and members. The Office of the Attorney General and the Tripartite Commission on Labour Affairs welcomed the proposal.

The mission noted the urgent call by society, including employers’ and workers’ organizations, to address more decisively the impunity and corruption existing in the country and considers that the authorities need to devote much higher levels of resources and take effective measures to eradicate the corruption that permeates the administration of justice. At present, the impunity rate is 98 per cent, according to official sources. The CACIF and the trade unions agree on the need for criminal and labour court procedures concerning anti-union practices to be expeditious and effective.

The Committee also notes with deep concern that, according to the ITUC, since the visit by the mission, four more trade union leaders were murdered between July and September 2011.

The Committee notes the conclusions of the Conference Committee in 2011, noting that this is an important case that has been under discussion for many years and that the Government has received numerous technical assistance missions on the various pending issues, and observing with deep concern the persistent climate of violence in the country and the growing degree of impunity, and that the figure for trade union leaders and members murdered in recent years shows that they are a particularly vulnerable group. The Conference Committee emphasized the need for further steps to strengthen the judicial authorities, the police and the labour inspection services, and to provide them with greater human and financial resources. The Conference Committee drew attention to the need for a reform with a view to reinforcing the rule of law and the institutions responsible for justice, as well as their independence. The Conference Committee expressed its serious concern at the situation and noted the lack of clear and effective political will of the Government. The Conference Committee considered that all measures needed to be taken on an urgent basis and in tripartite consultation to address the issues of violence and impunity in full coordination with the State authorities concerned and with ILO technical assistance.

The Committee notes the Government’s indication in its report, with reference to the pending matters relating to the application of the Convention, that the Tripartite Commission on International Labour Affairs has held various meetings in which ideas have been exchanged and agreements made between representatives of the three sectors of which the Commission is composed. The subjects addressed include in particular the serious acts of violence, the deficiencies of the labour inspectorate and the crisis of the judicial system. The Government adds that the possibility was discussed of providing training to the staff of the Office of the Attorney-General on labour law so as to ensure a better follow-up of cases of crimes against trade unionists, but that with regard to the recruitment of 100 new labour inspectors, it is still necessary for the Ministry of Labour to meet the President of the Republic for the necessary budgetary allocations. The Government indicates that emphasis has also been placed on the reactivation of the Subcommissions on Labour, Legal Reform, Employment Generation Policies, Mechanisms for Rapid Intervention in Cases, the Tripartite Council of the General Labour Inspectorate with a view to following up the various subjects covered by each of the Subcommissions.

With regard to the protection of trade unionists who have received death threats, the Government indicates that, as observed by the high-level mission in 2011, the situation of violence is generalized and that it affects trade unionists, employers and other categories. The figures for the murders of trade union leaders over the past five years demonstrate that they are a particularly vulnerable category, even though at the current time the most affected sector is bus drivers and passengers. The mission was informed that the main sources of violence include common delinquency, organized crime and, recently, drug trafficking, a crime which has been expanding particularly rapidly in recent years, especially in Guatemala and other Central American countries. As a result, the provision of individual protection to trade union leaders is becoming a difficult task both from the viewpoint of financial and logistical resources. Nevertheless, the Government wishes to show its concern for the physical protection of trade union leaders. This is carried out through the Department for the Assessment of Assaults on Human Rights Defenders, composed of the Office of the Attorney-General, the Ministry of Government, COPREDE, the Office of the High Commissioner of the United Nations, the General Directorate of Civil Intelligence (DIGICI), the Investigation Unit for Human Rights Defenders and the Unit for the Protection of Personnel of the Ministry of Government.

With reference to the issue of the slowness and ineffectiveness of the judicial system and the need to shed light on murders and crimes committed against trade unionists, the Government indicates that the Supreme Court of Justice has reiterated the undertaking of the judicial authorities to comply with their constitutional mandate to impart justice with independence, guaranteeing the access of the population to an effective judicial system.

With regard to the Committee’s request for the murders of trade unionists to be investigated, the Government indicates that, giving effect to the requests of the ILO high-level technical mission, on 23 May 2011, the Tripartite Commission on International Labour Affairs held a meeting in the Office of the Attorney-General with the Prosecutor General and the Adviser to the Attorney-General, following, which, on 26 May 2011, Decision No. 49-2011 of the Office of the Public Prosecutor of the Office of the Attorney-General was issued reactivating the Special Investigation Unit into Crimes against Trade Unionists, which will be composed of an investigator responsible for the Unit, three deputy investigators and one official. The Office of the Prosecutor General referred to the conclusion of an agreement with the ILO for the training of prosecutors. The Government adds that on 27 July a hearing was requested with the Prosecutor General to finalize the agreement for ILO technical assistance, establish a mechanism for the participation of the Office of the Attorney-General in the meetings of the Tripartite Commission, seek information on the establishment of the Support and Follow-up Commission for the Investigating Unit into Crimes against Trade Unionists and request a contact point for the exchange of information on the various cases of violence against trade unionists. This hearing is still awaited.

With regard to the criminal investigations into crimes against trade unionists and the situation of impunity, the Government indicates that the Supreme Court of Justice addressed the matter of the alarming increase in murders and crimes against trade unionists and the lack of progress in the investigations of crimes committed against them, and that the Supreme Court of Justice took measures, within the field of its competence, in response to the generalized violence which not only affects trade unions, but the whole of the country. These measures are: (1) the Supreme Court of Justice, through its Penal Chamber, has taken measures relating to the access to justice of victims, implementing coordination measures between the judicial authorities and a series of support services for victims, through a training programme including municipal victim assistance centres, as well as trained judicial facilitators supported by the judicial authorities; (2) the creation of courts to try high-risk crimes, as magistrates and investigators are particularly vulnerable to threats and other forms of coercion with a view to influencing them, and the ordinary criminal courts are inadequate to confront the situation: high-impact criminal courts have therefore been established to try high risk crimes as the best means of responding to the situation of generalized violence in the country and accordingly combating impunity; and (3) with regard to crimes against trade unionists, it is envisaged to entrust one of the existing criminal courts with the specific competence to try crimes against trade unions, with the magistrates and ancillary staff being trained and their awareness raised concerning the function of trade union activity in the country. Similarly, since November 2010, six judicial bodies have been in operation that are specialized in murders and violence against women, including violence occurring at the workplace.

The Committee notes all of the measures, initiatives and ideas of the authorities and particularly welcomes the reactivation of the former Special Investigation Unit into Crimes against Trade Unionists and its strengthening, as well as the will of the Government to develop with the Public Prosecutor a coordination mechanism between the Tripartite Commission and the Office of the Public Prosecutor and that the Supreme Court of Justice, including entrusting one court with specific competence to try crimes against trade unionists, with the provision of training on the motives for anti-union action, in accordance with ILO recommendations, so as to draw a distinction with other situations deriving from the generalized situation of violence affecting the country. The Committee notes the other measures adopted by the Government for institutional coordination to combat anti-union violence, as well as the agreement to establish a commission composed of the Office of the Attorney-General and trade unions to follow-up criminal cases relating to trade unionists.

The Committee is nevertheless bound to emphasize that in recent years the action by the Government to combat anti-union violence has not up to now resulted in decisive and effective improvements. Indeed, the Committee notes, for example, that the ITUC has reported four more murders of trade union leaders since the ILO mission in May 2011. Moreover, the action taken by the Government has not resulted in the compilation of information to be provided to the Committee concerning all of the criminal investigations into the 56 murders of trade union leaders committed since 2007 (information has only been provided on a limited number of cases), as well as the numerous cases of death threats and acts of intimidation. The Committee notes with deep concern the gravity of the situation of anti-union violence which has persisted even following successive ILO technical assistance missions and the emphasis placed by the high-level mission on the weakness of the security services and the judiciary, which moreover is permeated by corruption, and an impunity rate of 98 per cent for which there are no prosecutions or effective convictions. The Committee considers that the current penal situation once again confirms the conclusion of the Conference Committee concerning the lack of clear and effective political will of the Government.

The Committee once again draws the Government’s attention to the principle that a genuinely free and independent trade union movement cannot develop in a climate of violence and uncertainty; freedom of association can only be exercised in conditions in which fundamental human rights, in particular those relating to human life and personal safety, are fully respected and guaranteed; the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The Committee also recalls that excessively slow proceedings and the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity and which is extremely damaging to the exercise of trade union rights and incompatible with the requirements of the Convention.

The Committee once again deplores the murders of trade unionists and other acts of anti-union violence and once again firmly requests the Government to: (1) ensure the protection of trade unionists under threat of death; (2) convey to the Public Prosecutor and the Supreme Court of Justice its deep concern at the slowness and inefficiency of the justice system and its recommendations concerning the need to elucidate murders and crimes committed against trade unionists so as to punish the perpetrators; (3) ensure the allocation of sufficient resources to these objectives with the consequent increase in human and material resources, and ensure effective coordination between the various state bodies which may be called upon to intervene in the judicial system, and to provide training for investigators; and (4) to give absolute priority to these matters in Government policy. The Committee invites the Government to undertake a programme of technical cooperation with the ILO with a view to resolving the serious problem of anti-union violence and criminal impunity in relation to crimes against trade unionists.

The Committee expresses the firm hope that the Government will take all the necessary measures to guarantee full respect for the human rights of trade unionists and that it will continue to apply the protection machinery to all trade unionists who so request. The Committee also requests the Government to take the necessary steps to ensure that appropriate investigations are conducted by the Office of the Public Prosecutor and the judicial authorities to identify those responsible for acts of violence against trade union leaders and members, and to prosecute and punish them in accordance with the law. The Committee requests the Government to report on all developments in this regard and deplores the fact that up to now the Government has not indicated the stage reached by the investigations into the majority of murder cases. Observing that the Government’s information only exceptionally refers to cases in which those responsible have been identified and punished, the Committee expresses concern in this respect and insists that the Government should reinforce the criminal justice system considerably.

Finally, the Committee emphasizes the importance of the Government giving effect to the recommendations of the Committee on the Application of Standards, which were reproduced above.

Legislative problems

The Committee recalls that for several years it has been commenting on the following provisions, which raise problems of consistency with the Convention:

• – restrictions on the establishment of organizations (the need, under section 215(c) of the Labour Code, to have 50 per cent plus one of those working in the occupation to establish industry trade unions) and delays in the registration of trade unions or the refusal to register them;
• – restrictions on the right to elect trade union leaders in full freedom (they need to be of Guatemalan origin and to work in the enterprise or economic activity in order to be elected as trade union leaders, under sections 220 and 223 of the Labour Code);
• – restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are not declared by the majority of those casting votes, but by a majority of the workers); the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in services related to fuel, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996); and labour, civil and penal sanctions applicable to strikes involving public officials or workers in specific enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71-86);
• – the Civil Service Bill; in its previous observation the Committee noted a Civil Service Bill which, according to UNSITRAGUA and the National Federation of State Workers’ Unions (FENASTEG), requires a percentage that is too high to establish unions and restricts the right to strike. The Committee notes the Government’s indication that the Bill was withdrawn and that in July 2008 an inter-sectoral consultation committee was established to prepare a Bill that is consistent with the needs of the sectors involved; and
• – the situation of many workers in the public sector who do not benefit from trade union rights. These workers, who are under contract under item 029 and others of the budget, should have been recruited for specific or temporary tasks, but are engaged in ordinary and permanent functions and often do not benefit from trade union rights or employment benefits other than wages, and are not covered by social security or by collective bargaining, where it exists. The Committee notes that the members of the Supreme Court of Justice indicated to the high-level mission that, in accordance with the jurisprudence, these workers enjoy the right to organize. Nevertheless, this jurisprudence has not been given effect in national practice, according to technical assistance reports and the comments of the MSICG.

With regard to these matters, the Committee noted previously that, at the proposal of a high-level mission (2008), the Tripartite Commission approved an agreement to modernize the legislation and give better effect to Conventions Nos 87 and 98, and that this agreement provides for “an examination of the dysfunctions of the current system of industrial relations” (excessive delays and breach of due process, failure to enforce the law and sentences, etc.) and particularly of the machinery for the protection of the right to collective bargaining and the rights of workers’ and employers’ organizations and their members, as laid down in Conventions Nos 87 and 98, in the light of technical considerations and the comments of a substantive and procedural nature of the Committee. The Committee observed in 2010 that there had been various ILO technical assistance missions.

The Committee notes the Government’s indication in its report that the authorities decided, after holding meetings with the trade unions in the public sector, to re-examine in the Congress of the Republic the reform of the Civil Service Act.

The Committee notes the comments of the CACIF challenging its competence in relation to strikes and its principles. The Committee refers to the explanations provided in the 2011 General Survey on fundamental labour rights.

The Committee notes the conclusions of the 2011 high-level mission, which are as follows:

The mission regrets to note that no progress has been achieved since the previous year in relation to the legislative reforms requested by the CEACR and that the Tripartite Commission on Labour Affairs has not submitted any draft legislation to Congress. The mission reiterated the importance of bringing the legislation into full conformity with the Conventions on freedom of association. The mission forwarded the comments of the CEACR to the Labour Commission of the Congress. The Labour Commission of the Congress expressed the wish that the Tripartite Commission on Labour Affairs should enter into contact with it regularly to address these matters and the Tripartite Commission concerned. The mission suggested the possibility to the Labour Commission of the Congress to conclude an agreement with the ILO in relation to training on international labour standards and to improve their application; this proposal was received with great interest and it was indicated that the matter would be submitted in the near future to the competent authorities of the Congress.

With regard to the situation of the many workers in the public sector engaged under contracts under items 029 and others of the budget, the mission noted that, according to the Supreme Court of Justice, the case law recognizes the right of these workers to organize. The mission also noted that in practice these workers join organizations and in certain State institutions represent 70 per cent of the staff. The mission suggested that the authorities, by means of a circular or a resolution, should remove any doubt on the right to organize of workers engaged under contracts under item 029 of the budget. However, the Minister of Labour expressed reservations for economic and legal reasons.

The Committee notes that the Government has recently established an inter institutional commission for the preparation of a Bill respecting the outstanding legislative matters, but emphasizes once again that nothing in the Government’s report indicates that progress has been achieved in legislative matters. The trade union confederations also indicate that there has been no progress.

The Committee notes that, in its conclusions in 2011, the Conference Committee expressed the hope that the Government would be in a position to report substantial progress in the very near future. The Committee regrets to note that, despite requesting improvements in the legislation for many years, there has not been significant progress in the legislative reforms requested and it considers that much more effort will need to be made. The Committee firmly hopes that, with ILO technical assistance, the Government will be in a position to provide information in its next report on positive developments in relation to the various matters referred to and that tangible progress will be achieved in the near future.

Registration of trade unions. The Committee wishes to refer to the conclusions of the 2011 high-level mission concerning the alleged obstacles to the registration of trade unions, which read as follows:

The Committee of Experts received allegations concerning the obstacles to the registration of 20 trade unions. The workers’ sector of the Tripartite Commission on Labour Affairs indicated that 200 applications had been awaiting registration for some time and continued to be pending. The authorities denied this figure and explained that the delay with certain files was related to the negligence of one official for a year and that another person is now responsible for registrations. According to the authorities, 84 applications for registration were lodged in 2011, of which 34 have already been registered, four are in the process of registration and 11 more were signed by the Minister during the week of the mission’s visit. The mission emphasized to the Government the need for a rapid solution concerning the registration of the remaining organizations. The mission also suggested the establishment of a proactive registration procedure enabling trade unions with the authorization of their assembly to correct directly in the Ministry legal problems arising during the registration process. According to the General Directorate of Labour, this already happens in practice.

The Committee however observes that in their comments the trade union organizations indicate that in practice there exist significant obstacles to the registration of trade unions and it therefore invites the Government to discuss this matter in the Tripartite Commission with a view to adopting an approach that allows the rapid resolution with those establishing trade unions of any substantive and formal problems which may arise and facilitates in so far as possible the registration of trade unions.

Other matters

The maquila sector. For years, the Committee has been noting the comments of trade unions concerning serious problems in the application of the Convention in relation to trade union rights in the maquilas.

The Committee previously noted the comments of the ITUC that it is impossible to exercise the right to organize in export processing zones due to the determined opposition of employers. In the 200 maquilas that exist, unions have only been established in three of them and the labour authorities are incapable of exercising control over breaches of the law or the failure to give effect to it in this sector. According to the MSICG, the fact that it is impossible to establish organizations in maquilas is a result of anti-union practices.

The Committee notes the Government’s indication in its latest report that there are seven unions active in maquila and textile enterprises, and a collective contract approved for the period 2008–10.

According to the Government, the total number of denunciations in relation to freedom of association and the protection of the right to organize in the maquila and other sectors covered by the General Labour Inspectorate in 2009 was 30, most of which are under examination; the number of denunciations relating to freedom of association examined by the General Labour Inspectorate in 2010 was seven, all of which are under examination. The Committee concludes that the general procedures for administrative investigations are too slow and ineffective. The trade union confederations indicate that the total number of denunciations for violations of trade union rights is 129 in 2011.

The Government indicates in relation to trade union rights in maquilas that on 24 November 2010, the Inter-institutional Framework Agreement for the Exchange of Information between the Ministry of the Economy and the Ministry of Labour and Welfare was signed within the framework of Decree No. 29-89 of the Congress of the Republic of Guatemala, with the following outcomes: (1) the General Labour Inspectorate has a unified register which forms part of the comprehensive labour system of all entities which benefit from the advantages granted to the enterprises concerned (particularly in relation to taxation) under Decree No. 29-89 of the Congress of the Republic of Guatemala, the Act to promote and develop export activities and the maquila; and (2) the Directorate of Commercial Services and Investment of the Ministry of the Economy has a register of cases of entities covered by denunciations to the General Labour Inspectorate. In the Government’s view, this allows the cross-checking of information, which makes viable monitoring by the General Labour Inspectorate of compliance by enterprises with labour legislation, which is in turn reinforced by the action of the Directorate of Commercial Services and Investment through its Industrial Policy Department to ascertain that enterprises are making the correct use of the advantages granted by the Ministry of the Economy.

The Committee notes the conclusions of the 2011 high-level mission, according to which:

With regard to the situation of trade unions in the maquila, the mission noted the indication by the authorities that there are 740 enterprises in the sector, six unions and three collective contracts covering 4,600 workers out of a total of 110,000 workers. The mission notes that the number of workers in the maquila has fallen considerably in relation to previous years (around 300,000). The mission also notes the indication by the authorities that it is a sector which has been subject to special attention to verify compliance with labour rights and that there is a special unit of the Labour Inspectorate that is particularly active in addressing problems in the maquila. The mission considers, based on meetings with trade union federations, which are very concerned at the low level of unionization in the maquila, that training activities on freedom of association and collective bargaining should be intensified in the maquila sector and it encourages the Government to have recourse to ILO technical assistance in this respect.

The Committee requests the Government to continue providing information on the exercise in practice of trade union rights in maquilas (number of trade unions, their membership, number of collective agreements and their coverage, complaints of violations of trade union rights, decisions taken by the authorities and number of inspections). The Committee expresses the hope that the Government will continue benefitting from ILO technical assistance so that full effect is given to the Convention in the maquilasr and it requests the Government to provide information on this subject. The Committee requests the Government to refer problems relating to the exercise of trade union rights in the maquila sector regularly to the National Tripartite Commission and to provide information in this regard.

National Tripartite Commission. The Committee noted in 2010 that problems have arisen in this Commission in relation to the recognition by all concerned of the workers’ representatives, due solely to a division in UNSITRAGUA.

The Committee wishes to refer to the conclusions of the 2009 high-level mission, which read as follows:

It should firstly be noted that in recent times the trade union map has changed significantly. UNSITRAGUA has been divided into two groups. The mission obtained information from the Trade Union Federation UNSITRAGUA, registered by the Ministry of Labour, which is composed of eight or nine unions affiliated to the historical UNSITRAGUA (not registered, but which groups together around 100 unions), and from the administrative authorities. This information appears in the section of this report dedicated to interviews and will be forwarded to the Committee on Freedom of Association, which is currently examining a complaint, and the Government had requested technical assistance on this matter. The mission noted that the historical UNSITRAGUA (not registered) does not oppose the registration of the Trade Union Federation UNSITRAGUA and that, according to certain authorities in the Ministry of Labour, the application for the registration of the historical UNSITRAGUA is still pending (this is also the belief of the organization). However, the Minister of Labour indicated that, as one year had elapsed since the filing of the application and that there had been no change in the file, it was considered that the process needed to be started again from zero with a view to resolving the legal issues identified (principally the name of the organization and the possibility of the direct membership of workers, and not only of unions).

An important sector of the trade union movement, consisting of the CUSG, CGT and the historical UNSITRAGUA, which are affiliated or close to the International Trade Union Confederation (ITUC), is currently not represented on the Tripartite Commission on Labour Affairs. The mission drew the attention of the authorities to the need to include these organizations in the Commission on Labour Affairs, as tripartite dialogue cannot be undertaken effectively without an essential sector of the trade union movement. The employers’ representatives, represented by CACIF, indicated to the mission that they were not opposed to this.

The Committee requests the Government to ensure that the composition of the workers’ representation on the Tripartite Commission is based on strict criteria of representivity and requests the Government to take the necessary measures for that purpose. The Committee notes that the Committee on Freedom of Association at its session in November 2011 requested the Government to include the historical UNSITRAGUA in the National Tripartite Commission and to ensure that this organization is registered without obstacles. The Committee concurs with this recommendation.

Statistics and other matters. The Committee notes that the report of the ILO high-level mission in May 2011, indicates that it would be useful for the Government to provide clear statistics confined to trade unions that are in operation, and not those that have ceased to operate, and making a distinction between the public and private sectors, with a view to indicating the level of trade union membership and the coverage of collective bargaining in both sectors.

The Committee shares the views of the ILO mission and requests the Government to produce statistics on the unionization rate and the coverage of collective bargaining and other aspects of trade union activities.

The Committee also notes the mission’s indication that, as a follow-up to the recommendations of previous missions, part of the workers’ representatives and the employers’ representatives of the Tripartite Commission on Labour Affairs submitted a draft legislative text to the Congress for the establishment of an Economic and Social Council, which is under examination. The Committee requests the Government to provide information in this respect.

[The Government is asked to supply full particulars to the Conference at its 101st Session and to reply in detail to the present comments in 2012.]

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the Government’s report, the discussion that took place in the Conference Committee on the Application of Standards in 2010 and the 11 cases before the Committee on Freedom of Association (Cases Nos 2203, 2241, 2341, 2361, 2445, 2609, 2673, 2708, 2709, 2768 and 2811). In its previous observation, the Committee took note of the high-level mission which visited the country in April 2008 and of the tripartite agreement signed during the mission with a view to improving implementation of the Convention. It also noted the high-level mission undertaken from 16 to 20 February 2009 and the technical assistance missions of 3 January 2009 and a final mission to provide assistance to the Tripartite Commission in formulating the road map to address the measures requested by the Committee on the Application of Standards (this mission took place from 16 to 20 November 2009). The Committee noted that in the end there was no consensus between the social partners and that the Government prepared the road map on its own. The Committee notes that the Government states in its report that in April 2010 a training course was held on international labour standards for staff of the Attorney-General’s Office, judges, magistrates, and staff of the Human Rights Ombudsman’s Office and of the Ministry of Labour, with ILO technical assistance. The Committee notes that the Government has agreed to the mission, requested in June 2010 by the Conference Committee on the Application of Standards, involving the visit of an important and recognized personality with high-level ILO support to examine outstanding issues and make recommendations. The Committee notes the Government’s suggestion that the mission be held in early 2011.

Acts of violence against trade unionists

For several years, in its observations the Committee has noted acts of violence against trade unionists that have gone unpunished, and has asked the Government to send information on developments in this regard.

The Committee notes that, at the proposal of a high-level mission in 2008, the Tripartite Commission approved an agreement to eradicate violence, under the terms of which there are to be evaluations of: “(1) institutional action, including the most recent activities, and in particular the special protection measures to prevent acts of violence against trade unionists who are under threat; and (2) of the measures that are being taken (increases in the budget and in the number of investigators) to guarantee that effective investigations are conducted with sufficient resources so as to be able to elucidate the crimes committed against trade unionists and to identify those responsible”.

In its previous observation, the Committee noted that both the International Trade Union Confederation (ITUC) and the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG) refer in their comments of 2009 to serious acts of violence against trade union leaders and members during the period 2008–09, and report a climate of fear and intimidation the aim of which is to undermine existing trade unions and prevent the establishment of new ones. Both organizations also emphasize the deficiencies in the labour inspection system and the crisis in the legal system. The Committee expressed the hope that, in the context of the tripartite agreement concluded during the high-level mission, all the matters raised, as well as the comments of the ITUC, the Trade Union Confederation of Guatemala (UNSITRAGUA) and the MSICG will be examined and addressed in a tripartite context by the Government and the social partners in the framework of the Tripartite Commission on International Labour Affairs, and the mechanism for rapid intervention in cases. The Committee notes with regret that there is nothing in the Government’s report to suggest that a tripartite review of these matters has been held, and once again strongly requests the Government to take all available measures to ensure that these issues are examined without delay by the abovementioned Tripartite Commission.

The Committee notes the extensive comments of 30 August 2010 on the application of the Convention, submitted by the MSICG. It notes that according to the MSICG, in 2009 and 2010 there have been numerous acts of violence against trade union leaders and trade unionists, ranging from murders (47 since 2007, seven of them in 2010), death threats and acts of intimidation, to abductions, torture or armed assault (with guns or knives); there has also been unauthorized entry of homes of trade unionists and trade union premises. According to the MSICG, in some cases the State did not authorize the security measures requested by the persons threatened and the Office of the Public Prosecutor is not investigating all the cases since some complaints have not even been entered in its database. The MSICG also cites instances of obstacles or administrative hurdles to the establishment or running of trade unions, and of unions being destroyed while organizing. More than 20,000 public sector workers have no employment relationship but a civil contract for professional services and, hence, no trade union rights. Furthermore, trade union activity has been criminalized, with penal action being brought against trade unionists for holding peaceful demonstrations and attacks on trade unions in anti-union publications or through smear campaigns. According to the MSICG, there have also been numerous instances of trade unionists being transferred, dismissed or removed from office on anti-union grounds; there are also acts of interference by employers. Furthermore, to the detriment of existing unions, the authorities have promoted “parallel” workers’ organizations that are under their control and it is the latter that send delegates to the Tripartite Commission though they have little claim to representativeness. As to legal action, the MSICG emphasizes that slow proceedings with long delays continue to be a problem and that the legal reforms requested by the ILO have not been adopted. Lastly, the MSICG points out that this anti-union climate is reflected in the membership rate (2.2 per cent of the economically active population, of which the public sector accounts for 87.5 per cent).

The Committee observes that many of the assertions in the MSICG’s communication were submitted to the Committee on Freedom of Association in its meetings of November 2009 and 2010. In its conclusions, the Committee on Freedom of Association noted with grave concern that the allegations presented in this case are extremely serious and include numerous murders of union leaders and members (16), one disappearance, acts of violence (sometimes also against the relatives of union members), threats, physical harassment, intimidation, the rape of a unionist’s family member, obstacles to granting legal status to unions, the dissolution of a union, criminal proceedings for carrying out trade union activities, major institutional failures with regard to labour inspection and the functioning of the judicial authorities that have created a situation of impunity in labour matters (for example, excessive delays, a lack of independence, failure to comply with reinstatement orders issued by the courts) and in criminal matters (see 355th report, Case No. 2609, paragraphs 858 et seq.).

The Committee is bound to note that, in terms of violence against trade unionists, the failures in the functioning of the penal justice system and the impunity of offenders, the situation continues to grow worse. The high-level mission of February 2009 noted that in recent years, despite the increase in violence against trade unionists (according to information from government officials), there have been no effective trials or convictions. The high-level mission heard testimony of the general lack of independence of the judiciary and government bodies as regards criminal cases. The Government informed the high-level mission that the situation of violence was generalized and denied any state policy against the trade union movement.

The Committee had noted that the high-level mission of February 2009 reported that a significant increased was needed in the capacity and budget of the Office of the Prosecutor General of the Nation, allowing the number of prosecutors and investigators to be increased substantially; the mission suggested that additional resources be allocated to existing programmes for the protection of trade unionists (44 trade unionists currently benefit from protection measures) and witness protection programmes, and that these programmes be properly coordinated. The high-level mission was of the view that measures should be taken actively to discourage any stigmatization of trade unions and the trade union movement that associates trade union activities with criminal acts. The high-level mission reported a very low membership rate and few collective agreements. According to the MSICG’s comments, this situation has not changed.

The Committee requests the Government to reply in detail to the MSICG’s comments of 2010. The Committee notes the statements made by the Government to the Committee on the Application of Standards to the effect that 30 new inspectors have been recruited to add to the strength of the labour inspectorate, that 70 unions and 45 collective labour accords were registered in 2009 and that most of the murders reported were unrelated to trade union activities.

The Committee wishes to refer to the conclusions drawn by the Committee on the Application of Standards in June 2010, which read as follows:

The Committee noted that the Committee of Experts continued to raise with concern the following issues: numerous serious acts of violence, including murders and threats against trade union members; the stigmatization of trade unions; and legislative provisions and practices that were not in conformity with the rights set out in the Convention. The Committee of Experts had also noted the ineffectiveness of criminal procedures in relation to acts of violence, excessive delays in the judicial procedures and the lack of independence of the judicial authorities which was giving rise to a serious situation of impunity.

The Committee noted the indication by the Government representative that the situation of violence and impunity was generalized and did not exclusively affect the trade union movement. The Government had requested the support of the United Nations to combat impunity and the International Commission against Impunity in Guatemala (CICIG) had been established for that purpose. The Government had requested reports to determine whether or not the murders of trade unionists referred to were due to reasons related to trade union activities. The Government had on many occasions requested ILO technical assistance in relation to all of the problems raised, including violence, impunity and the legislative changes requested, as well as the drawing up of the roadmap. The Government representative stated that tripartite social dialogue had been taking place in the National Tripartite Commission and that four tripartite dialogue round tables had been created at the regional level. He indicated that, following the latest ILO high-level mission, inter-institutional coordination mechanisms had been strengthened. In addition, action had been undertaken for the reinstatement of workers in export processing zones. Training activities had been carried out and the decision had been taken to establish two labour training schools. He stated that, although measures had been taken to reinforce the labour inspection services and the unit in the ministry responsible for relations with the ILO, further technical assistance from the ILO was needed.

The Committee noted that this was an important case that had been discussed for many years and that the Government had received numerous technical assistance missions with a view to bringing the law and practice into conformity with the Convention.

The Committee noted with deep concern that the situation of violence and impunity appeared to have worsened and recalled the importance of guaranteeing on an urgent basis that workers were able to carry out their trade union activities in a climate free from fear, threats and violence. It noted further with concern that the Commissioner of the CICIG resigned on 7 June 2010. The Committee urged the Government to take the necessary measures to ensure the effective operation of schemes for the protection of trade unionists and defenders of freedom of association and other human rights.

The Committee noted with concern that the Government had not shown sufficient political will to take action to combat violence against trade union leaders and members and to combat impunity. The Committee emphasized the need to make substantial progress in sentencing in relation to acts of violence against trade unionists and in ensuring that, not only the direct authors of the crime, but also the instigators were punished. The Committee requested the Government to intensify its efforts to bring an end to impunity, including by considerably increasing the budgetary resources allocated to the judiciary, the prosecutors, the police and the labour inspectorate.

Also observing with concern the generalized climate of violence, the Committee recalled that freedom of association could not be exercised in a climate where personal safety and basic civil liberties were not guaranteed. The Committee urged the Government to ensure simple and prompt recourse or any other effective recourse to competent courts or tribunals for protection against acts that were in violation of fundamental rights.

The Committee points out that in the road map it prepared at the request of the Committee on the Application of Standards in 2009, the Government referred to the need to pay greater attention to following up, investigating and concluding cases of violence against trade unionists and that affirmative action was accordingly needed in the interests both of effective and periodical reporting to the Committee on Freedom of Association and of inter-institutional coordination allowing relevant information to be exchanged and brought to the attention of the ILO supervisory bodies. The Government stated its intention of strengthening the Ombuds Unit (unidad de procuración) of the Directorate of International Affairs by appointing qualified staff to deal exclusively with these issues, endowed with the necessary resources to perform their duties and respond immediately to the particular circumstances of each and every case under investigation. In addition, the Government wished to draw up an annual schedule of meetings between the Ministry of Labour (Ombuds Unit of International Labour Affairs) and the Office of the Attorney-General in order to have a framework for ongoing work between the two institutions. Furthermore, the Directorate of International Labour Affairs will draw up an inventory of cases already concluded so as to bring them to the attention of the Committee on Freedom of Association. Furthermore, on the matter of the inter-institutional coordination, the Government stated that the Multi-Institutional Labour Committee for Industrial Relations in Guatemala is being reactivated and will draw up a list of entities that have not yet been included but that are closely involved with these issues.

The Committee notes that in its report the Government states that it is ready and willing to give effect to the content of the Convention. It indicates in this connection that:

–      the Ombuds unit of the Directorate of International Affairs has been reinforced for the purpose of strengthening the ILO supervisory bodies and meeting their requirements thanks to the appointment as from April 2010 of an attorney-adviser and an ombudswoman, which has eased the flow of information on cases reported. Specifically, since then, 127 written requests were sent between April and August 2010, seeking information from various prosecution services of the Office of the Attorney-General, and from magistrates courts, courts of first instance and appeals chambers of labour courts, the Office of the Ombudsman, the General Inspectorate of Labour and the technical and legal advisory departments of the Ministry of Labour and Social Insurance, concerning complaints lodged by workers and trade union organizations. On the basis of this information, the Government sent the Committee on Freedom of Association 37 reports allowing action to be taken on specific objections raised in the cases;

–      assistance from magistrates of the Supreme Court of Justice was obtained at the 99th Session of the International Labour Conference, held in Geneva from 2 to 18 June 2010, the aim being to enable a judicial body to become acquainted at first hand with the application of Convention No. 87 and complaints to the Government of Guatemala on violations of that Convention; and

–      a request was made to the Attorney-General and the Council of the Attorney‑General’s Office in November 2009, and reiterated in January 2010, to hold a special meeting with the Tripartite Commission on International Labour Affairs in order to address the topic “Ensuring effective investigation and trial of those responsible for acts of violence and threats against trade unionists” and to secure “progress in the establishment and strengthening of the public prosecution service for crimes against trade unionists”, which has not as yet been held because selection of a new Public Prosecutor is still pending.

The Committee once again draws the Government’s attention to the principle that a genuinely free trade union movement cannot develop in a climate of violence and intimidation; freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed; the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The Committee also points out that excessive delays in proceedings and the absence of judgments against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights.

In view of the foregoing, although it has been informed that the Government has sent replies to the Committee on Freedom of Association regarding the cases that depend on the proper working of the Multi-Institutional Committee and on Parliament’s willingness – according to the Government – to increase budgets in the legal system, the Committee concludes with regret that the Government has not demonstrated sufficient political will to combat violence against trade union leaders and trade unionists and to combat impunity. The Committee observes that, according to the Government’s report, the meeting that the Attorney General was requested to hold with the national Tripartite Commission has not taken place. The Committee expresses deep concern at the lack of significant progress, particularly in view of the repeated ILO missions and the very clear and specific recommendations made by the ILO’s supervisory bodies. It is particularly concerned that the Government has provided no comprehensive information and up-to-date statistics on acts of violence against trade unionists, the stages reached in criminal trials and the identification and conviction of offenders; nor has it provided information on any increase in budgets for the state bodies responsible for combating violence and impunity.

The Committee once again firmly requests the Government: (i) to ensure the protection of trade unionists under threat of death; (ii) convey to the Public Prosecutor and the Supreme Court of Justice its deep concern at the slowness and inefficiency of the justice system and its recommendations concerning the need to elucidate murders and crimes committed against trade unionists so as to punish the perpetrators; (iii) to ensure the allocation of sufficient resources to these objectives with the consequent increase in human and material resources, to ensure coordination between the various state bodies who may be called upon to intervene in the judicial system, and to ensure training for investigators; and (iv) to give priority to these matters in government policy. The Committee invites the Government to have recourse to ILO technical assistance to resolve the serious problem of impunity for crimes against trade unionists.

Lastly, the Committee again expresses its deep concern at the acts of violence against trade union leaders and members and reminds the Government that trade union rights can be exercised only in a climate that is free of violence. The Committee expresses the firm hope that the Government will take all necessary measures to guarantee full respect for the human rights of trade unionists and will continue to apply the protection machinery to all trade unionists who so request. It also requests the Government to take the necessary steps without delay to conduct the necessary investigations to identify those responsible for acts of violence against trade union leaders and members so that they are prosecuted and punished in accordance with the law. The Committee requests the Government to report on all developments in this regard. The Committee expresses its concern that the information provided by the Government refers only exceptionally to cases in which those responsible have been identified and punished, and emphasizes the need for considerable reinforcement of the criminal justice system.

Legislative problems

The Committee has for several years been commenting on the following provisions, which raise problems of consistency with the Convention:

–      restrictions on the establishment of organizations in full freedom (the need to have 50 per cent + 1 of those working in the occupation to establish industry trade unions, under section 215(c) of the Labour Code) and delays in the registration of trade unions or the refusal to register them;

–      restrictions on the right to elect trade union leaders in full freedom (they need to be of Guatemalan origin and to be a worker in the enterprise or economic activity in order to be elected as a trade union leader, under sections 220 and 223 of the Labour Code);

–      restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are declared not by the majority of those casting votes, but by a majority of the workers); the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in services related to fuel, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996); labour, civil and penal sanctions applicable to strikes involving public officials or workers in specific enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71-86);

–      the Civil Service Bill; in its previous observation, the Committee noted a Civil Service Bill which, according to UNSITRAGUA and the National Federation of State Workers’ Unions (FENASTEG), requires a percentage that is too high to establish unions and restricts the right to strike. The Committee notes the Government’s indication that the Bill was withdrawn and that in July 2008 an inter-sectoral consultation committee was established to prepare a Bill that is consistent with the needs of the sectors involved; and

–      the situation of many workers in the public sector who do not benefit from trade union rights. These workers, who are under contract under item 029 and others of the budget, should have been recruited for specific or temporary tasks, but are engaged in ordinary and permanent functions and often do not benefit from trade union rights or other employment benefits, other than wages, and are not covered by social security or by collective bargaining, where it exists. The Committee notes that the members of the Supreme Court of Justice indicated to the high-level mission that, in accordance with case law, these workers enjoy the right to organize. Nevertheless, this principle in case law has not been given effect in national practice, according to technical assistance reports, and the comments of the MSICG.

With regard to these matters, the Committee notes that, at the proposal of the 2008 high-level mission, the Tripartite Commission approved an agreement to modernize the legislation and give better effect to Conventions Nos 87 and 98. This agreement provides for “an examination of the dysfunctions of the current system of industrial relations” (excessive delays and breach of due process, failure to enforce the law and sentences, etc.), and particularly of the machinery for the protection of the right to collective bargaining and the rights of workers’ and employers’ organizations and their members, as laid down in Conventions Nos 87 and 98, in the light of technical considerations and the comments of a substantive and procedural nature of the ILO Committee of Experts. The Committee observes that the high-level mission undertook to provide appropriate technical assistance in relation to these matters and notes that this assistance has already started.

The Committee observed that the road map set deadlines for the submission of bills pertaining to the legislative amendments requested by the Committee of Experts (the deadline was set for 28 February 2010). It reminds the Government in this connection that a series of proposals to address the legislative problems was drawn up by the national Tripartite Commission in the first quarter of 2009 with the ILO technical assistance missions.

The Committee observes that, according to the road map drawn up by the Government in December 2008:

We have appointed a Lawyers’ Commission in the Ministry of Labour with a view to analysing the feasibility of the recommendations for legislative reforms proposed by the CEACR. The opinion of that Commission was already notified to the previous ILO technical assistance mission.

We have in our possession a list of legislative initiatives proposing the adoption of amendments to Decree No. 1441 of the Congress of the Republic, the Labour Code, which are currently being examined by the Congress of the Republic. This shows the political will of the State of Guatemala gradually to resolve the problems arising from the application of Guatemalan labour law.

In addition to the above, an analysis has also been undertaken of the manner in which the right to strike of workers is penalized by the Labour Code and, taking into account the CEACR’s recommendations, a study has already been prepared for submission to the state bodies for a decision.

We have also planned the strategy that we will apply to achieve the objectives set.

The Committee observes that nothing in the Government’s report allows it to note progress in legislative matters. The MSICG likewise indicates that there has been no progress.

The Committee notes that, in the Committee on the Application of Standards, the Government merely referred to certain measures relating to the Civil Service Bill. The Committee notes with regret that there has been no significant progress with the legal reforms requested. The Committee is of the view that greater efforts are called for, and hopes to note progress in the near future. It expresses the firm hope that, with technical assistance from the ILO, the Government will be in a position to provide information in its next report on positive developments in the various issues raised.

Other matters

The maquila sector. For years, the Committee has been noting comments submitted by trade union organizations on serious problems in applying the Convention that relate to trade union rights in the export processing sector.

The Committee noted the comments of 2009 by the ITUC asserting that it is impossible to exercise the right to organize in export processing zones owing to the determined opposition of the employers. Only three unions have been established in the 200 export processing zones that exist and the labour authorities are incapable of exercising control over breaches of the law or failure to apply it in this sector. According to the MSICG, the fact that it is impossible to establish organizations in export processing zones is a result of anti-union practices.

The Committee noted that, in its conclusions, the high-level mission of 2008 indicated that “according to the Ministry of Labour and Social Insurance, there are seven collective accords in the export processing sector, but only two of them date from 2007. The remainder date from 2003 or even before. With regard to trade union membership, according to the administrative authorities there are six unions and a membership of 562 in the export processing sector, which employs around 200,000 workers. In the view of the executive committee of the trade union movement, there are only two unions in this sector. Whatever the correct figure, there is clearly only a minimum level of trade union activity and collective bargaining in export processing zones and hence a problem in applying Conventions Nos 87 and 98”. In its report, the Government states that there are seven active trade unions in maquila and textile enterprises and one approved collective accord for the period 2008–10.

According to the Government, in 2008 the General Inspectorate of Labour dealt with 33 complaints relating to freedom of association and protection of the right to organize. Some cases were settled by conciliation, others are still pending. In 2009, the General Inspectorate of Labour dealt with 30 complaints relating to freedom of association, most of which are still being processed. In 2010, the General Inspectorate of Labour has dealt with seven complaints on freedom of association, all of which are still being processed. Lastly, the Government appends a document, dated 15 January 2010, addressed to the Public Prosecutor and the Attorney-General.

The Committee requests the Government to provide information on the exercise of trade union rights in practice in export processing zones (number of trade unions, size of their membership, number of collective agreements and their coverage, complaints of violations of trade union rights and decisions taken by the authorities, and the number of inspections). The Committee expresses the hope that the Government will continue benefiting from technical assistance from the Office so that the Convention is given full effect in the export processing sector, and requests the Government to provide information on this matter. It requests the Government to refer problems relating to the exercise of trade union rights in the maquila sector to the national Tripartite Commission, and to supply information in this regard.

National Tripartite Commission. The Committee notes that in this Commission there are problems with the recognition by all concerned of the workers’ representatives, due to a division in UNSITRAGUA. The Committee notes that the Government has requested ILO technical assistance in this matter. The Committee hopes that the Government will receive the requested technical assistance.

[The Government is asked to supply full particulars to the Conference at its 100th Session and to reply in detail to the present comments in 2011.]

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s report, the discussion in the Conference Committee on the Application of Standards in 2009 and the ten cases that are before the Committee on Freedom of Association (Cases Nos 2203, 2241, 2341, 2361, 2445, 2609, 2673, 2700, 2708 and 2709). In its previous observation, the Committee noted the report of the high-level mission which visited the country in April 2008 and the tripartite agreement signed during the mission with a view to improving the application of the Convention. The Committee notes the high-level mission undertaken from 16 to 20 February 2009 and the technical assistance missions of 3 January 2009, as well as a final mission to provide assistance to the Tripartite Committee for the Formulation of the Road Map on the measures requested by the Committee on the Application of Standards (this mission took place from 16 to 20 November 2009). The Committee notes that in the end there was no consensus between the social partners and the Road Map was prepared solely by the Government.

The Committee also notes the detailed comments on the application of the Convention made by the International Trade Union Confederation (ITUC) in a communication dated 26 August 2008 and by the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG) in defence of the rights of workers in a communication dated 28 August 2009 which relate to issues already raised by the Committee, as well as serious acts of violence against trade union members and leaders, obstacles to the process of registering trade union organizations, difficulties in the exercise of the right of assembly of trade unions and other alleged violations of the Convention. The Committee hopes that in the context of the tripartite agreement concluded during the high-level mission all of the matters raised, as well as the comments of the ITUC, the Trade Union Confederation of Guatemala (UNSITRAGUA) and the MSICG will be examined and addressed in a tripartite context by the Government and the social partners in the framework of the Tripartite Commission on International Labour Affairs, as well as the Legal Reform Subcommittee and the mechanism for rapid intervention in cases.

Acts of violence and impunity against trade unionists

The Committee recalls that for several years it has been noting in its observations acts of violence against trade unionists and impunity in this respect, and that it had asked the Government to indicate developments in this respect.

The Committee notes that, at the proposal of the high-level mission in 2008, the Tripartite Commission approved an agreement to eradicate violence, under the terms of which evaluations will be carried out of: “(1) institutional action, including the most recent activities, and in particular the special protection measures to prevent acts of violence against trade unionists who are under threat; and (2) of the measures that are being taken (increases in the budget and in the number of investigators) to guarantee that effective investigations are conducted with sufficient resources so as to be able to elucidate the crimes committed against trade unionists and to identify those responsible”.

The Committee notes that both the ITUC and the MSICG in their comments place emphasis on grave acts of violence against trade union leaders and members during the period 2008–09 and report a climate of fear and intimidation with a view to undermining existing trade unions and preventing the establishment of new ones. Both trade union organizations also emphasize the deficiencies in the labour inspectorate and the crisis of the judicial system.

The Committee notes that in its statements to the Conference Committee and its report the Government indicates that: (1) the State of Guatemala expresses special interest in guaranteeing full respect for the human rights of trade unionists, and of all Guatemalan nationals in general, as well as reiterating the Government’s commitment to combating impunity through the improvement of the judicial system and the labour administration system within the executive authority; (2) the Tripartite Commission on International Labour Affairs met the Public Prosecutor and the Attorney-General with a view to requesting the establishment of a public prosecution service for crimes against journalists and trade unionists, with support being expressed for this request by each of the representatives of all sides; it had also met the Council of the Office of the Attorney-General, together with the Public Prosecutor, to discuss the subject of violence not only against trade unionists, but also against the lawyers representing trade unionists and against workers in general; (3) as a strategy of inter-institutional coordination and with a view to supporting the conduct of investigations, in November 2008 two meetings had been held with representatives of the Office of the Attorney-General, the Ministry of the Economy, the Ministry of Government, the Ministry of Foreign Affairs and the Supreme Court of Justice. The meetings had concluded that, in view of the existence of the Multi-institutional Commission for Industrial Relations in Guatemala, established in 2003, by Government Decision No. 430-2003, it was adequate to reactivate the Multi-institutional Commission to follow up cases of violence against trade unionists and other matters relating to industrial relations in the country, and accordingly to collaborate with the Office of the Attorney-General, and particularly with the Office of the Prosecutor General for the investigation and resolution of the cases; (4) during 2009, the Multi-institutional Commission for Industrial Relations in Guatemala had met regularly, holding four meetings between 1 January and 30 July 2009; (5) progress has been made in the criminal investigations of certain murders; for example, on 10 January 2009, a person was apprehended who had been charged with committing the murder of the trade union leader, Pedro Zamora, and on 15 April 2009 the public prosecutor lodged criminal charges with the judiciary, with the requirement to hold a trial; during the hearing on 4 June 2009, the magistrate found that there was sufficient evidence against the trade union member to conclude the preparatory stage and begin court proceedings; in the upcoming months, the accused will be tried in the criminal courts; and (6) there is no criminalization or stigmatization of trade union activity. The Government attaches a copy of the records of the meetings of the National Tripartite Commission. In a recent additional report, the Government indicates that the accused was not convicted by the court of the murder of the trade union leader Pedro Zamora and that the Office of the Attorney-General will appeal against the ruling.

The Committee refers to the conclusions of the Committee on the Application of Standards, in which it noted with concern numerous and serious acts of violence against trade unionists, as well as the inefficiency of the criminal proceedings related to these violent acts, giving rise to a grave situation of impunity and the excessive delays in legal proceedings. It also noted the allegations concerning the lack of independence of the judiciary. The Committee on the Application of Standards noted the high-level mission which visited the country in 2009, which had emphasized that, while additional resources had been allocated to the investigatory mechanisms to combat impunity, further measures and resources were clearly necessary to that effect. In this connection, it observed with deep concern that the situation in relation to violence and impunity appeared to be worsening and it recalled with urgency the importance of ensuring that workers are able to carry out their trade union activities in a climate free from violence, threats and fear. The Committee on the Application of Standards highlighted the need to make meaningful progress in sentencing in relation to crimes of violence against trade unionists and in ensuring that, not only the direct authors of the crime, but also the instigators were punished. The Committee on the Application of Standards observed in this respect the need for the continued strengthening of and specific training for those responsible for investigating violence against trade unionists, as well as an improved collaboration of the various bodies mandated in this regard. The Committee on the Application of Standards hoped that concerted efforts in this regard would finally permit meaningful progress to be made in bringing an end to impunity.

Further noting with concern the important allegations of an anti-union climate in the country and the stigmatization of trade unions, the Committee on the Application of Standards recalled the intrinsic link between freedom of association and democracy. It further noted that, beyond the question of impunity, the conclusions of the high-level mission focused on the need for concerted action in relation to the effectiveness of the judicial system, the effective respect for freedom of association by all parties and the effective functioning of the National Tripartite Commission. In particular, the slowness and lack of independence of the judiciary has given rise to significant challenges to the development of the trade union movement. The Committee of Experts shares the opinion of the high-level mission of 2009 concerning the importance of adopting the necessary measures to ensure that awareness is raised to an adequate level concerning the fundamental role of trade unions in the social and economic development of society and their close links with the consolidation of democracy. For this reason, it is important for measures to be taken to actively prevent any stigmatization of trade unions and the trade union movement.

The Committee on the Application of Standards observed that, despite the seriousness of the problems, there had been no significant progress in the application of the Convention, in legislation or in practice. It urged the Government to redouble its efforts with respect to all the above matters and to adopt a complete, concrete and innovative strategy for the full implementation of the Convention, including through the necessary legal reforms, the strengthening of the programme for the protection of trade unionists and witnesses, and of the measures to combat impunity and the provision of the financial and human resources necessary for the labour inspectorate and the investigative bodies, such as the Office of the Public Prosecutor. The Committee on the Application of Standards expected, with the assistance and necessary technical cooperation of the Office, that the Government and the social partners would be in a position to agree upon a road map with clearly determined time frames for the necessary action in respect of all the above points. The implementation of this road map and any progress made should be reviewed periodically by the ILO. More tangibly, the Committee on the Application of Standards requested the Government to provide a detailed report to the Committee of Experts containing information on the tangible progress made in legislative reforms, the measures taken to combat impunity and the creation of a conducive environment for trade union movement and it expressed the firm hope that it would be in a position next year to note substantial improvements in the application of the Convention.

The Committee of Experts observes that many of the allegations in the MSICG’s communication were submitted to the Committee on Freedom of Association at its meeting in November 2009. In its conclusions, the Committee on Freedom of Association noted with concern that the allegations presented in this case were extremely serious and included numerous murders of union leaders and members (16), one disappearance, acts of violence (sometimes also against the relatives of union members), threats, physical harassment, intimidation, the rape of a family member of a trade unionist, obstacles to granting legal status to unions, the dissolution of a trade union, criminal proceedings for carrying out trade union activities, and major institutional failings with regard to labour inspection and the functioning of the judicial authorities, creating a situation of impunity in labour matters (for example, excessive delays, a lack of independence, failures to comply with reinstatement orders issued by the courts), and in criminal matters (see 355th Report, Case No. 2609, paras 858 et seq.).

The Committee on Freedom of Association regretted the very limited information provided by the Government on a very small number of allegations and concluded that these replies by the Government were an illustration of the excessive slowness of the procedures outlined by the complainant organizations and the resulting climate of impunity.

The Committee of Experts, in the same way as the Committee on Freedom of Association, once again draws the Government’s attention to the principle that a genuinely free trade union movement cannot develop in a climate of violence and uncertainty; freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed; the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The Committee also recalls that excessive delays in proceedings and the absence of judgements against the guilty parties creates in practice a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights.

In view of all of the above, the Committee concludes that the Government has not demonstrated sufficient political will to combat violence against trade union leaders and members and to combat impunity and that the conclusion of the Committee on the Application of Standards continues to be globally valid concerning the lack of significant progress despite the repeated ILO missions and the very clear and firm recommendations of the ILO supervisory bodies. In the first place, the Committee emphasizes that the Government has only replied to a very small number of allegations of violence submitted to the Committee on Freedom of Association in Case No. 2609, despite their extreme gravity. Secondly, the Road Map on all the measures requested by the Committee on the Application of Standards in June 2009 was only prepared in the third week of November 2009, days before the meeting of the Committee of Experts. Thirdly, the Government emphasizes in its report the recent reactivation of the Multi-institutional Commission (which until recently dealt with issues of anti-union violence), the request for a special unit of the public prosecution service dedicated particularly to trade unionists (without indicating the decision that was adopted), although very little progress has been made in a very low number of cases of violence against trade unionists.

The Committee is bound to note that the situation of violence against trade unionists, the shortcomings in the operation of the criminal justice system and the situation of impunity have been further aggravated. The high-level mission of February 2009 noted that in recent years, despite the higher level of violence committed against trade unionists (according to information from Government officials), there have not been effective prosecutions or convictions. The high-level mission received testimony of the general lack of independence of the judicial authorities and Government bodies in relation to criminal cases. The Government indicated to the high-level mission that the situation of violence was generalized and denied the existence of a state policy against the trade union movement.

The Committee notes that the high-level mission of February 2009 determined that a significant increase is required in the capacity and budget of the Office of the Public Prosecutor of the Nation, with a view to increasing the number of prosecutors and investigators. The mission proposed that additional resources should be allocated to existing programmes for the protection of trade unionists (there are currently 44 trade unionists benefiting from protection measures) and witnesses, and that these programmes should be appropriately coordinated. The high-level mission considered that measures need to be taken to actively combat any stigmatization of trade unions and the trade union movement implied by the association of trade union activities with criminal acts. The high-level mission indicates that the trade union membership rate and the number of collective agreements is very low.

The Committee notes the Road Map formulated by the Government after holding consultations in the National Tripartite Commission, in which it was emphasized that consensus was not reached between workers’ and employers’ organizations. The Road Map and the Government’s introduction are summarized below:

Introduction and background

In June 2009, when the 98th Session of the International Labour Conference was held, the Ministry of Labour and Social Insurance (MTPS) of Guatemala undertook to prepare a road map to address the observations of the Committee of Experts on the Application of Conventions and Recommendations of the ILO.

On 2 July 2009, the MTPS requested technical assistance from the ILO for the preparation of a time-bound road map for the adoption of the necessary measures to achieve effective compliance with ILO Convention No. 87 in Guatemala.

In a response to this request, the first outline of the road map was received from the International Labour Standards Department of the ILO, which was submitted for consideration by the Tripartite Commission on International Labour Affairs in Guatemala in the context of five meetings. It was only examined in three sessions, without the road map being formulated and approved because, although the representatives of workers and employers expressed their viewpoints, they did not reach consensus. They were also convened to a meeting on 19 November at which the sole item on the agenda was the road map.

In view of this situation, the High Office of the Ministry of Labour and Social Insurance of Guatemala took the decision to formulate the road map through which the State of Guatemala undertakes to implement the activities set out therein.

Strategic Objective I: Provide an effective response to all the cases submitted to the ILO Committee on Freedom of Association

The State of Guatemala, in the same way as many countries in the region, has historically been singled out on many occasions concerning the violation of the right to organize and freedom of association, which are protected by ILO Conventions Nos 87 and 98.

In view of this situation, the current Government of the Republic of Guatemala considers it a priority to address the observations, recommendations and complaints relating to freedom of association which have been referred to the ILO supervisory bodies, particularly those relating to the legal status of persons who due to the exercise of their right to organize are subject to persecution, violence or intimidation.

We are aware of the need for greater attention to be paid to the follow-up investigation and conclusion of cases of violence against trade unionists, and we therefore consider it necessary to begin with affirmative action involving an effective and periodic report to the Committee on Freedom of Association (CFA), including measures of inter-institutional coordination with a view to the exchange of pertinent and relevant information, thereby ensuring that it is brought to the knowledge of the ILO supervisory bodies.

Accordingly, we propose the strengthening of the prosecution unit of the Directorate of International Affairs, through the assignment of qualified personnel devoted exclusively to this subject, with the necessary resources to carry out their activities and provide an immediate response to the specific situation of each of the cases under investigation.

It is also our wish to formulate an annual schedule of meetings between the Ministry of Labour (International Labour Affairs Unit) and the Office of the Attorney-General, with a view to establishing a permanent framework for action between the two institutions.

The Directorate of International Labour Affairs will also undertake an assessment of the cases which have been concluded to bring them to the knowledge of the CFA, as well as of specific cases of violence against trade unionists, with a view to the establishment of a mechanism for their appropriate follow up in the relevant procedural bodies and to provide relevant and regular responses to the CFA of the ILO.

Strategic Objective II: Strengthening inter-institutional coordination machinery

Based on experience, we consider it necessary to maintain constant and permanent communication in a flexible and effective manner with Government institutions that are closely involved in labour matters. For this purpose, the Multi-institutional Labour Commission for Labour Matters in Guatemala is being reactivated and a list will be drawn up of the bodies which are not yet included in the above Commission, but which are closely related to the subject matter.

Through this new system, the intention is to improve coordination between this Ministry and the related Government institutions, as a basis for addressing labour disputes appropriately and the strengthening of industrial relations in the country.

By way of illustration, it should be noted that recent separate meetings have been held with the Advocate-General of the Nation, the Public Prosecutor and the Attorney-General, the President of the Supreme Court of Justice, accompanied by the four magistrates of the Chamber for the Protection of Constitutional Rights, whose remit includes labour courts, and a magistrate from the Civil Chamber, officials who on 13 October 2009 took office for a period of five years and the Minister of Government. All of these officials were informed of the intention to address the observations, recommendations and complaints submitted against the State of Guatemala in labour matters, and they offered full cooperation.

Strategic Objective III: Addressing the recommendations of the CEACR for legislative reforms

A Lawyers’ Commission of the MTPS has been appointed with a view to analysing the feasibility of the recommendations for legislative reforms proposed by the CEACR. The opinion of the Lawyers’ Commission was communicated to the former ILO technical assistance mission.

We have in our possession a list of legislative initiatives proposing the adoption of reforms to Decree No. 1441 of the Congress of the Republic and the Labour Code, which are currently being examined by the Congress of the Republic. This shows the political will of the State of Guatemala to resolve gradually the problems deriving from the application of Guatemalan labour law.

In addition to the above, an analysis has also been undertaken of the manner in which the Penal Code penalizes the right to strike of workers and, taking into account the CEACR’s recommendations, there is now a study to be submitted to the state bodies for decision.

The strategy that will be applied to achieve the expected objectives has also been planned.

Attached is a matrix containing the Road Map to address the observations and recommendations of the ILO supervisory bodies with regard to Conventions Nos 87 and 98 on the right to organize, freedom of association and collective bargaining.

The Committee observes that the measures outlined in the Road Map are either to be implemented on a constant basis or are subject to time limits, which mainly expire on 31 December 2009, or before that date, except for the submission of draft legal reforms to the state bodies (the time limit for which is set at 28 February 2010) and certain aspects of the measures for the coordination of state bodies in relation to combating violence.

The mission which provided assistance for the formulation of the Road Map emphasizes in its report with regard to the issue of anti-trade union violence: (1) the commitment of the Office of the Attorney-General to reinforce measures for the investigation of the complaints received, and in general of any complaint relating to punishable offences against trade unions, and to submit regularly to the Ministry of Labour and Social Insurance the available information concerning such complaints, so that it is able to reply to the supervisory bodies and particularly the Committee on Freedom of Association; the public prosecution service indicates difficulties relating to the lack of cooperation of those lodging complaints; (2) the offer of cooperation from the Ministry of Government, both for the protection of persons under threat and in support of the action of the labour inspectorate; (3) the offer of cooperation of the new magistrates in the Supreme Court of Justice to alleviate the expenditure and efforts of the Ministry (inspectors) particularly in procedures to penalize offences; (4) the new meeting of the Multi-institutional Commission established by the Ministry to strengthen the links between the officials represented on the Commission. The meeting was attended by the new magistrate in the Supreme Court of Justice who is responsible for labour matters, the training of judges and the modernization of labour procedures; and (5) the prosecutors provided the following figures for cases concerning crimes against trade unionists: 31 in 2007, 32 in 2008 and 48 in 2009. The Ministry of Government indicated that a series of trade unionists are currently receiving personal or zoned police protection and indicated its readiness to provide support through the police for action by inspectors, when so requested.

With regard to the problem of impunity, the report of the mission indicates that the problem of impunity in Guatemala is seen as a worrying national problem that is more practical than legislative in its nature. The press frequently reports murders, particularly of bus drivers, without those who committed them being arrested and brought to trial. This is due, on the one hand, to the precarious nature of the system of investigation and, on the other, the situation of the judiciary. The International Commission against Impunity in Guatemala (CICIG) indicated in its report that “Currently in Guatemala the conditions do not favour the existence of independent and impartial judges”. Nevertheless, steps have recently been taken which could be significant: (a) the resignation of the Prosecutor-General of the Republic and the Attorney-General, at the request of the President of the Republic, and the appointment of a new Prosecutor-General and Attorney-General, who is a career official in the public prosecution service, on 30 July 2009, after first consulting the CICIG; and (b) the renewal of the magistrates of the Supreme Court of Justice on 13 October 2009, following a rigorous selection process, on which, among other bodies, views were expressed by the Commissioner of the International Commission against Impunity in Guatemala (CICIG).

The Committee requests the Government to: (1) ensure the protection of trade unionists who are under threat of death; (2) convey to the public prosecutors and the Supreme Court of Justice its deep concern at the slowness and ill-effectiveness of the judicial system and its recommendation concerning the need to elucidate murders and crimes committed against trade unionists with a view to penalizing those responsible; (3) allocate sufficient resources for these objectives, and consequently increase human and material resources, ensure coordination between the various state bodies who may be called upon to intervene in the judicial system and train investigators; and (4) give priority to these matters in Government policy. The Committee invites the Government to have recourse to ILO technical assistance to resolve the grave problem of criminal impunity with regard to crimes against trade unionists.

The Committee requests the Government to provide regular information on the attainment of the objectives of the Road Map and the administrative, judicial and legal reforms set out therein. The Committee trusts that the objectives and measures envisaged in the Road Map will result within a reasonable period of time in crucial improvements with regard to the serious problems raised.

Finally, the Committee once again expresses its deep concern at the acts of violence against trade union leaders and members and recalls that trade union rights can only be  exercised in a climate that is free of violence. The Committee expresses the firm hope that the Government will continue to take measures to guarantee full respect for the human rights of trade unionists and will continue providing protection measures to all trade unionists who so request. The Committee also requests the Government to take the necessary measures without delay to conduct the necessary investigations with a view to identifying those responsible for acts of violence against trade union leaders and members, so that they are prosecuted and punished in accordance with the law. The Committee requests the Government to keep it informed of any developments in this respect. The Committee nevertheless expresses its concern that the information provided by the Government only exceptionally reports cases in which those responsible have been identified and punished, and emphasizes the need to considerably reinforce the criminal justice system.

Legislative problems

The Committee recalls that for many years it has been commenting on the following provisions which raise problems of conformity with the Convention:

–      restrictions on the establishment of organizations in full freedom (the need to have half plus one of those working in the occupation to establish industry trade unions, under section 215(c) of the Labour Code) and delays in the registration of trade unions or the refusal to register them;

–      restrictions on the right to elect trade union leaders in full freedom (they need to be of Guatemalan origin and to be a worker in the enterprise or economic activity in order to be elected as a trade union leader, under sections 220 and 223 of the Labour Code);

–      restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are declared not by the majority of those casting votes, but by a majority of the workers); the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in services related to fuel, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996); labour, civil and penal sanctions applicable to strikes involving public officials or workers in specific enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71-86);

–      the Civil Service Bill; in its previous observation, the Committee noted a Civil Service Bill which, according to the UNSITRAGUA and the National Federation of State Workers’ Unions (FENASTEG), requires a percentage that is too high to establish unions and restricts the right to strike. The Committee notes the Government’s indication that the Bill was withdrawn and that in July 2008 an inter-sectoral consultation committee was established to prepare a Bill that is consistent with the needs of the sectors involved; and

–      the situation of many workers in the public sector who do not benefit from trade union rights. These workers, who are under contract under item 029 and others of the budget, should have been recruited for specific or temporary tasks, but are engaged in ordinary and permanent functions and often do not benefit from trade union rights or other employment benefits, other than wages, and are not covered by social security or by collective bargaining, where it exists. The Committee notes that the members of the Supreme Court of Justice indicated to the high-level mission that, in accordance with case law, these workers enjoy the right to organize. Nevertheless, this principle in case law has not been given effect in national practice according to technical assistance reports.

With regard to these matters, the Committee notes that, at the proposal of the 2008 high-level mission, the Tripartite Commission approved an agreement to modernize the legislation and give better effect to Conventions Nos 87 and 98. This agreement provides for “an examination of the dysfunctions of the current system of industrial relations” (excessive delays and procedural abuses, lack of effective enforcement of the law and of sentences, etc.), and particularly of the machinery for the protection of the right to collective bargaining and the rights of workers’ and employers’ organizations and their members, as laid down in Conventions Nos 87 and 98, in the light of technical considerations and the comments of a substantive and procedural nature of the ILO Committee of Experts on the Application of Conventions and Recommendations. The Committee observes that the high-level mission undertook to provide appropriate technical assistance in relation to these matters and notes with interest that this assistance has already started.

The Committee has received the report of the first technical assistance mission (November 2008) and of a second technical assistance mission (January 2009), following up the high-level mission (April 2008), and of a technical assistance mission carried out in November 2009 to prepare the Road Map of measures to give effect to the Convention called for by the Conference Committee on the Application of Standards. It observes that the Road Map includes deadlines for the submission of draft legislation covering the legislative reforms requested by the Committee of Experts. It recalls in this respect that a series of proposals to address the legislative problems raised were prepared by the National Tripartite Commission along with the ILO technical assistance missions in the first quarter of 2009.

The Committee requests the Government to provide information on this matter and hopes to be able to note progress in the near future. The Committee firmly hopes that with the technical assistance that it is receiving, the Government will be able to provide information in its next report offering a positive assessment with regard to the various points mentioned.

Other matters

Export processing sector (maquilas). For many years, the Committee has been noting the comments made by trade union organizations on significant problems of application of the Convention in relation to trade union rights in export processing zones (maquilas). In its 2008 observation, the Committee noted the Government’s indications that: (1) the General Labour Inspectorate of the Ministry of Labour and Social Insurance was addressing complaints made in connection with the export processing sector, as well as developing routine inspections through the Export Processing Inspection Unit; (2) in 2007, 19 enterprises in the sector were closed and ten were closed in 2008; (3) in 2008, a procedure of administrative conciliation allowed the payment of benefits to workers affected by the closures in the case of ten export processing enterprises, and the workers who decided not to make use of the conciliation procedure and opted instead to take legal action received assistance free of charge from the Office of the Labour Ombudsman; (4) there are ten trade unions in the sector, with a total membership of 258 workers; (5) in 2007, ten complaints were dealt with relating to violations of freedom of association rights and in six cases a settlement was reached through conciliation, and in 2008, 17 complaints were dealt with relating to violations of Convention No. 87, and 16 are being processed; and (6) the training activities will continue on the rights established in Conventions Nos 87 and 98 for the export processing sector, for which the Government is relying upon technical support from the ILO.

The Committee notes that the Government confines itself in its report to indicating that, during the last half of 2008 and up to now (December 2009) 61 trade unions have been registered, together with 29 collective accords, but that it does not provide information on training activities in the field of trade union rights.

The Committee notes the recent comments of the ITUC according to which it is impossible to exercise the right to organize in export processing zones in view of the determined opposition of the employers. Only three unions have been established in the 200 export processing zones that exist, and the labour authorities are incapable of exercising control over the failure to comply with and the violations of the legislation in this sector.

The MSICG considers that the fact that it is impossible to establish organizations in export processing zones is a result of anti-union practices.

The Committee notes that, in its conclusions, the high-level mission of 2008 indicated that: “according to the Ministry of Labour and Social Insurance, there are seven collective accords in the export processing sector, but only two of them date from 2007. The remainder date from 2003 and before. With regard to trade union membership, according to the administrative authorities, there are six unions with 562 members in export processing zones, in a context of around 200,000 workers. In the view of the executive committee of the trade union movement, there are only two unions in this sector. Whatever the correct figure, there is clearly only a minimum level of trade union activity and collective bargaining in the export processing sector, thereby constituting a problem in the application of Conventions Nos 87 and 98”. The Committee requests the Government to provide information on the exercise of trade union rights in practice in export processing zones (number of trade unions, number of Worker members, number of collective agreements and their coverage, complaints of violations of trade union rights, decisions adopted by the authorities and the number of inspections).

Under these conditions, the Committee hopes that the Government will continue benefiting from technical assistance from the Office, so that the Convention is given full effect in the export processing sector, and that it will continue providing information on this matter. The Committee requests the Government to refer to the National Tripartite Commission problems which arise in relation to the exercise of trade union rights in the export processing sector and to provide information on any developments.

National Tripartite Commission. The Committee has received the reports on the work of the National Tripartite Commission between August 2008 and July 2009. The Committee notes that, according to technical assistance reports, this Commission is a valuable tool, although there are currently problems relating to the recognition by all concerned of the workers’ representatives due to a division in UNSITRAGUA. Assistance needs to be provided to the Tripartite Commission for the preparation of the documents to be discussed and the management of meetings to facilitate the adoption of decisions or firm conclusions. The Committee endorses the opinion expressed in the technical assistance report and invites the Government to request technical assistance on this matter, as well as for the works of the Legal Reform Subcommittee, which has prepared the documents setting out the reforms requested by the Committee of Experts, and the functioning of the mechanisms for rapid intervention in cases of violations of trade union rights. The Committee requests the Government to continue providing information on the work of the National Tripartite Commission on International Labour Affairs, and that of the Legal Reform Subcommittee and the mechanism for rapid intervention in cases. The Committee expresses the firm hope that in the near future it will be able to note that significant progress has been made in the application of the Convention.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s report, the discussion which took place in the Conference Committee on the Application of Standards in 2008 and the various cases currently before the Committee on Freedom of Association (some of which relate to serious allegations of violence against trade union leaders and trade unionists). The Committee also notes the report of the high-level mission which visited the country in April 2008 and the tripartite agreement signed during the mission designed to improve the application of the Convention.

The Committee also notes the detailed comments on the application of the Convention made by the Union Movement, Guatemalan Indigenous and Agricultural Workers for the Defence of Workers’ Rights in a communication dated 31 August 2008, as well as the comments made by the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008, which refer to matters already raised by the Committee, as well as to serious acts of violence against trade union leaders and trade unionists, impediments to the registration of trade union organizations, difficulties in exercising the right of assembly of trade union organizations and other violations of the Convention. In this regard, the Committee hopes that, in the context of the tripartite agreement concluded during the high-level mission, all the questions raised, as well as the comments made by the ITUC in 2005 and by the Trade Union Confederation of Guatemala (UNSITRAGUA) in 2006, will be examined and tackled in a tripartite manner by the Government and the social partners in the context of the work of the Tripartite Committee on International Affairs, the Legal Reform Subcommittee and the mechanism for rapid intervention in cases.

Acts of violence against trade unionists

The Committee recalls that for several years, it has noted in its observations acts of violence against trade unionists and has previously requested the Government to provide information on developments in this regard. The Committee notes that the Government indicates in its report that: (1) it shares the Committee’s concern with regard to the acts of violence which, in its view, affect not only people involved in trade union activities, but also society in general; (2) it hopes that, in the medium term, it will be possible to reduce the crime rate through the development of strategies to strengthen civil intelligence systems, so that the perpetrators of crimes can be identified, tried and convicted; (3) a new Attorney-General and Head of the Office of the Public Prosecutor has recently taken up office and the Tripartite Committee on International Affairs has called on him to deal with the issue of acts of violence against trade unionists and the need to track down, prosecute and convict the perpetrators of these acts; and (4) the intention of the members of the Tripartite Committee is to achieve closely coordinated links with the Office of the Public Prosecutor in order to facilitate the provision of effective security measures for those members of the trade union movement who are the victims of intimidation or threats.

The Committee notes the conclusions of the high-level mission, in particular, with reference to the issue of human rights in trade union circles, that: “the mission noted greater attention to this problem, which is reflected in the decision of the Office of the Public Prosecutor under the instruction of the Attorney-General to allocate greater budgetary resources to the Special Office for Offences against Journalists and Trade Unionists and to assign four new investigators to that area. Moreover, the progress that had been made in the investigation into the assassination of the Secretary-General of the Trade Union of Workers of Puerto Quetzal, Mr Pedro Zamora, in January 2007, which prompted a special ILO mission and action taken by the mission in March–April 2007. The investigations carried out have established that two individuals have been accused of the crime and a warrant for their arrest has been issued. It is also worth pointing out that, following an investigation, it was confirmed that the trade unionist Mr López Estrada, thought to have disappeared, was found safe and sound at his mother’s house in Puerto Barrios”.

Furthermore, the Committee notes that, at the proposal of the mission, the Tripartite Committee approved an agreement to eradicate violence, which provides for the carrying out of: “(1) an evaluation of institutional action, including the most recent, and particularly the special protection measures to prevent acts of violence against trade unionists under threat; and (2) an evaluation of the measures that are being taken (increases in budget allocations and in the number of investigators) to guarantee effective investigation with sufficient resources to permit the elucidation of the crimes against trade unionists and the identification of those responsible”.

In this respect, the Committee once again expresses deep concern at the acts of violence against trade union leaders and members and recalls that trade union rights can only be exercised in a climate that is free of violence. The Committee expresses the firm hope that the Government will continue to take measures to guarantee full respect for the human rights of trade unionists and will continue providing protection measures to all trade unionists who so request. The Committee also requests the Government to take the necessary measures without delay to conduct the investigations with a view to identifying those responsible for acts of violence against trade union leaders and members, so that they are prosecuted and penalized in accordance with the law. The Committee requests the Government to keep it informed of any development in this respect.

Legislative problems

The Committee recalls that for many years it has been commenting on the following provisions which raise problems of conformity with the Convention:

–      restrictions on the establishment of organizations in full freedom (the need to have half plus one of those working in the occupation to establish industry trade unions, under section 215(c) of the Labour Code); delays in the registration of trade unions or refusal to register them. In this regard, the Committee notes that the Government indicates that: (1) the new Ministry of Labour authorities have initiated a process to significantly reduce the time required for the administrative processing of trade union authorizations; (2) the Directorate General of Labour had authorized 40 new trade unions as at August 2008; and (3) the speed with which pending applications for registration will be processed is dependent on how quickly the comments made by the technical bodies of the Ministry of Labour and Social Insurance to the representatives of the trade unions in the process of being established are taken into account;

–      restrictions on the right to elect trade union leaders in full freedom (the need to be of Guatemalan origin and to be a worker in the enterprise or economic activity in order to be elected as trade union leader, under sections 220 and 223 of the Labour Code);

–      restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are declared not by a majority of those casting votes, but by a majority of the workers); the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in services related to fuel, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996); labour, civil and penal sanctions applicable to strikes involving public servants or workers in specified enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71-86);

–      Civil Service Bill. In its previous observation, the Committee noted a Civil Service Bill which, according to the UNSITRAGUA and the National Federation of State Workers’ Unions (FENASTEG), requires a percentage that is too high to establish unions and restricts the right to strike. The Committee notes that the Government reports that the Bill has been withdrawn from discussion, since an inter-sectoral consultation committee was set up in July 2008 to come up with a Bill that is consistent with the needs of the sectors involved;

–      Situation of many workers in the public sector who do not benefit from trade union rights. These workers (who are under contracts under item 029 and others of the budget), who should have been recruited for specific or temporary tasks, are engaged in ordinary and permanent functions and often do not benefit from trade union rights and other employment benefits apart from wages, and are not covered by the social security nor by collective bargaining where it exists. The Committee notes that the members of the Supreme Court of Justice stated to the high-level mission that, in accordance with case law, these workers enjoy the right to organize.

With regard to the matters above, the Committee notes that, at the proposal of the high-level mission, the Tripartite Committee approved an agreement to modernize the legislation and give better effect to Conventions Nos 87 and 98, and that this agreement provides for “an examination of the dysfunctions of the current system of labour relations (excessive delays and procedural abuses, lack of effective enforcement of the law and of sentences, etc.) and particularly of the machinery for the protection of the right to collective bargaining and the rights of workers’ and employers’ organizations and their members as laid down in Conventions Nos 87 and 98 in the light of technical considerations and the comments of a substantive and procedural nature of the ILO Committee of Experts on the Application of Conventions and Recommendations”. The Committee observes that the high-level mission undertook to provide appropriate technical assistance in relation to these matters and notes with interest that this assistance has already started.

The Committee takes note of the report of the first mission of the technical assistance (November 2008), which was a follow-up to the high-level mission (April 2008).

The Committee firmly hopes that with the technical assistance the Government is receiving, the Government will be able to provide information in its next report on a positive assessment with regard to the various points mentioned.

Other matters

Export processing sector. In its previous observation, the Committee noted the comments made by trade union organizations referring to significant problems relating to trade union rights in export processing zones and requested the Government to take the necessary measures to give full effect to the Convention in export processing zones. The Committee notes that the Government reports that: (1) through its general labour inspectorate, the Ministry of Labour and Social Insurance has been addressing complaints made in connection with the export processing sector, as well as developing routine inspections through the Inspectorate’s Export Processing Inspection Unit; (2) in 2007, 19 enterprises in the sector closed and in 2008, ten closed; (3) in 2008, a procedure of administrative conciliation allowed the payment of benefits to workers affected by the closures in the case of ten export processing enterprises, and the workers who decided not to make use of the conciliation procedure and opted instead to take legal action received assistance free of charge from the Office of the Labour Ombudsperson; (4) there are ten trade unions in the sector with a total membership of 258 workers; (5) in 2007, ten complaints were dealt with relating to violations of freedom of association rights and in six cases a settlement was reached through conciliation, and in 2008, 17 complaints were dealt with relating to violations of Convention No. 87, and 16 are being processed; and (6) the training activities will continue on the rights established in Conventions Nos 87 and 98 for the export processing sector, for which the Government is counting on technical support from the ILO.

In this regard, the Committee notes that, in its conclusions, the high-level mission points out the following on this matter: “… it is in this area, as well as in the area described in the previous paragraph, that we see the extent to which the problems identified during the 2007 mission persist. According to the Ministry of Labour and Social Insurance, there are seven collective agreements for the export processing sector, but only two of those are from 2007. The others date back to 2003 or earlier. With regard to trade union membership, according to the administrative authority, there are six trade unions with a total membership of 562 workers in the export processing sector, among almost 200,000 workers, but according to the executive board of the trade union movement, there are only two trade unions in this sector. Regardless of whichever information is accurate, what is certain is that there continues to be minimal trade union activity and collective bargaining in the export processing sector and problems in applying Conventions Nos 87 and 98”.

Under these circumstances, the Committee hopes that the Government will continue benefiting from technical assistance from the Office so that the Convention is given full effect in the export processing sector, and will continue providing information on this matter.

Tripartite national committee. In its previous observation, the Committee asked the Government to continue keeping it informed of the work of the Tripartite Committee on International Affairs, as well as the work of the Legal Reform Subcommittee and the mechanism for rapid intervention in cases. The Committee notes that the Government reports that: (1) it is satisfied with the development of the meetings of the Tripartite Committee, particularly with the effectiveness of the dialogue and the openness to analysis, discussion and recommendations arising from the meetings; (2) by August 2008, ten meetings had been held, in which subjects of relevance to employer-worker relations were discussed; (3) the impetus of the Tripartite Committee’s activities has absorbed functions covered by the Legal Reform Subcommittee and an analysis is currently being carried out in order to filter and prioritize the cases to be dealt with; (4) in the context of the mechanism for rapid intervention in cases, both the worker and the employer sectors of the Tripartite Committee have reported cases and, given the constant participation of the general labour inspector, those cases have been dealt with and results achieved, both in the agricultural sector and in the garment or export processing sector; and (5) in addition, the Deputy Minister of Labour has intervened directly in the cases brought to the attention of the Tripartite Committee, appearing in person in the places in which a dispute has arisen and mediating in order to find an appropriate solution to those cases. The Committee requests the Government to continue keeping it informed of the work of the Tripartite Committee on International Affairs, as well as that of the Legal Reform Subcommittee and the mechanism for rapid intervention in cases.

Finally, the Committee observes that, in the context of the session of the International Labour Conference held in 2008, during the analysis of the application of the Convention by Guatemala, the Committee on the Application of Standards invited the Government to accept a mission made up of the Employer and Worker spokespersons to assist the Government in finding durable solutions to all of the above matters. The Committee notes with interest that the Government indicates in its report that it welcomes the invitation along with each and every mission which wishes, in good faith, to assist in overcoming the complex situations relating to freedom of association.

The Committee hopes that it will be able to note in the near future that significant progress has been made in the application of the Convention.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report and its reply to the comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation), of 31 August 2005, and the Trade Union Confederation of Guatemala (UNSITRAGUA) of 26 August 2006. The Committee also notes the comments made by the ITUC, dated 28 August 2007, which refer to legislative matters and issues relating to the application of the Convention in practice which have already been raised by the Committee and, particularly, threats and harassment against a trade union leader, the attempted murder of a leader of the teaching sector and the kidnapping for two hours of a trade union leader. The Committee requests the Government to provide its comments in this respect.

The Committee also notes the comments made by the Guatemalan Trade Union Movement, which groups together many trade union organizations (CTC, CGTG, CUSG, CNOC, CNSP, FENASTEG, FESEBS, FESTRAS, FESOC, FNL, SITRADOCSA, SITRADEORSA, SITRAPDEORSA and UNSITRAGUA), dated 27 August 2007. The Committee further notes the various cases that are being examined by the Committee on Freedom of Association, some of which relate to serious allegations concerning the murder of a trade union leader. The Committee also notes the conclusions of the technical assistance mission which visited the country from 26 to 28 February 2007.

Acts of violence against trade unionists

The Committee recalls that in previous observations it noted acts of violence against trade unionists and requested the Government to provide information on developments in this respect. The Committee notes that the Government provides information supplied by the Office of the Special Investigator into crimes against journalists and trade unionists of the Office of the Public Prosecutor concerning complaints relating to acts of violence against trade unionists. In accordance with this information, seven complaints were made in 2007, compared with 37 in 2006 and 43 in 2005. In addition, two rulings have been handed down, one in 2004 and another in 2006, with one person convicted in each case. There have also been cases of settlements through conciliation and 13 cases prepared and awaiting examination by the courts. In this respect, the Committee notes the conclusions of the technical assistance mission which emphasized the existence of situations of anti-union violence against trade unionists, including death threats, acts of intimidation and even the murder of a trade union leader in 2007. According to the information received by the mission, 17 trade unionists are benefiting from official security measures. In this respect, the mission welcomed the fact that, at its request, the Government provided protection measures for the Secretary-General of the Union of Workers of the Quetzal Port Enterprise, and the headquarters of the union. The Committee notes that the Office of the Public Prosecutor provided information to the mission on the situation with regard to complaints and criminal proceedings relating to crimes against trade unionists. The Committee notes that, in its conclusions, the mission indicated that the complaints made only lead in very few cases to the identification and punishment of those responsible. In this respect, while noting certain protection measures for trade unionists, the Committee once again expresses deep concern at the acts of violence against trade union leaders and members, and in particular deeply regrets the murder of a trade union leader in 2007. It recalls that trade union rights can only be exercised in a climate that is free of violence. The Committee expresses the firm hope that the Government will take the necessary measures to guarantee full respect for the human rights of trade unionists and will continue providing protection measures to all trade unionists who so request. The Committee also asks the Government to take the necessary measures without delay to conduct the investigations with a view to identifying those responsible for acts of violence, prosecuting and penalizing them in accordance with the law. The Committee requests the Government to keep it informed of any development in this respect.

Legislative problems

The Committee recalls that for many years it has been commenting on the following provisions which raise problems of conformity with the Convention:

–           restrictions on the establishment of organizations in full freedom (the need to have half plus one of those working in the occupation to establish industry trade unions, under section 215(c) of the Labour Code), delays in the registration of trade unions or refusal to register them. In this respect, the Committee notes the indication by the technical assistance mission in its conclusions that “the legislation in force raises obstacles to the adequate development of trade unionism, starting with the impossibility in practice to establish industry unions, in view of the requirement in law for such organizations only to be accepted when their founders demonstrate that they represent 50 per cent plus one of the workers in the sector, which is clearly impossible to achieve”. The mission also referred to the lack of detailed statistics on trade unions and higher-level organizations;

–           restrictions on the right to elect trade union leaders in full freedom (the need to be of Guatemalan origin and to be a worker in the enterprise or economic activity in order to be elected a trade union leader, under sections 220 and 223 of the Labour Code);

–           restrictions on the free financial administration of trade union organizations under the Basic Act on supervision by the tax administration, which in particular allows inspections without prior notice. In this respect, the Committee notes that the technical assistance mission indicated in its conclusions that over the past eight years only one inspection of trade union accounts has been carried out and that financial investigations are exclusively based on disparities detected through information technology;

–           restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are declared not by a majority of those casting votes, but by a majority of the workers); the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in services related to fuel, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996); labour, civil and penal sanctions applicable to strikes involving public servants or workers in specified enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71‑86). The Committee notes the emphasis placed by the technical assistance mission on the fact that there have not been any legal strikes since the 1970s. Indeed, according to the mission, “the problem lies in the excessive judicial basis of labour relations law, which in other countries is a matter for the labour administration and not the judiciary. Rulings by judges tend to hold sway when collective solutions are being sought and there is an absence of typical trade union action. It noted accordingly that the last lawful strike was held in 1975 and that for over ten years there has not been any type of strike”.

With reference to these matters, the Committee notes the Government’s indication that the technical assistance mission was extremely useful. The Government reports that following the mission tripartite meetings were held in the Tripartite Legal Reform Subcommittee, the pending issues were reviewed and a priority was established among the issues. A number of meetings have been held and the proposals made by the Committee have been reviewed, some of which had already achieved consensus in 2001. These issues include the amendment of section 390 of the Penal Code. The Government requests continued technical assistance in this respect.

In general terms, the Committee notes that the technical assistance mission also found that “the basis of the Guatemalan problem in the field of freedom of association and collective bargaining lies in the existence of a labour law system which, in both substantive and procedural terms, prevents and raises obstacles to the appropriate development of trade union activity and accordingly to collective bargaining and, as indicated by the ILO supervisory bodies, is in objective violation of Conventions Nos 87 and 98. Without the reform of the system, it is very difficult to propose an appropriate solution, particularly since both the social partners and the Government are imbued with a culture that follows very closely procedures arising out of this legal system”. The Committee observes with concern that the serious problems on which it has been commenting for many years continue to persist and that, despite the tripartite discussion at the national level and the technical assistance provided on various occasions, there has not been significant progress. The Committee considers that a reform of existing legislation is needed in order for the guarantees expressed in the Convention. The Committee strongly hopes that the new Government, with the assistance of the mission which will be held at the end of April in 2008, will show the political will to resolve these issues. The Committee requests the Government to provide information in its next report on any positive developments in relation to the various issues raised.

Other matters

Export processing sector. The Committee previously requested the Government to provide information on any complaints relating to violations of trade union rights in the export processing sector over the past two years, and on their outcome. In this respect, the Committee notes that the Government attaches information provided by the General Directorate of Labour according to which there are seven active trade union organizations. The Government also forwards information supplied by the general labour inspectorate relating to complaints of violations of Conventions Nos 87 and 98 between July 2006 and June 2007, of which one in 2006 related to the export processing sector. In 2007, there have not been complaints relating to the export processing sector. The Government indicates that since the establishment of the Export Processing Inspection Unit in 2003, the latter is responsible for addressing all types of complaints and labour disputes in the sector. Two workshops have been held and it is coordinating with the CGTG the organization of workshops addressing the subject of trade union rights. The Committee notes the Government’s indication that technical and financial assistance has been requested from the ILO Subregional Office in San José in Costa Rica to hold monthly tripartite seminars on freedom of association and collective bargaining in the export processing industry. The Committee welcomes this initiative and hopes that the necessary technical assistance will be provided. In this regard, noting that in their latest communication the trade union organizations refer to significant problems relating to trade union rights, the Committee requests the Government to take the necessary measures to give full effect to the Convention in export processing zones and to continue providing information in this respect.

Civil Service Bill. In its previous observation, the Committee noted a Civil Service Bill which, according to the UNSITRAGUA and the National State Union Workers’ Federation (FENASTEG), requires a percentage that is too high to establish unions and restricts the right to strike. The Committee requested the Government to keep it informed of legislative developments in this respect. In this connection, the Committee notes the Government’s indication that the legislative initiative proposing amendments to the Civil Service Act was the subject of broad consultation and has received one favourable and another unfavourable opinion in the various commissions of the Congress of the Republic. The Government indicates that it requested technical assistance from the Office to assess and make the necessary recommendations and proposals on the compatibility of this legislative initiative with Conventions Nos 87 and 98. The Committee expresses the firm hope that, with the contribution of the requested technical assistance, the Civil Service Bill will be in full conformity with the provisions of the Convention. It requests the Government to keep it informed on this subject.

Situation of many workers in the public sector who do not benefit from trade union rights. The Committee notes that, according to the technical assistance mission, there are a high number of workers classified as temporary, daily or occasional and that these classifications are not set out in the law, but in the General State Budget, as indicated in the Manual of Budget Classifications for the public sector in Guatemala. These workers (they are under contracts under item 029 and others of the budget), who should have been recruited for specific or temporary tasks, are engaged in ordinary and permanent functions and often do not benefit from trade union rights and other employment benefits apart from wages, and are not covered by the social security nor by collective bargaining where it exists. In this connection, the Committee recalls that, in accordance with Article 2 of the Convention, all workers, without distinction whatsoever, with the sole possible exception of the armed forces and the police, shall have the right to establish and to join organizations of their own choosing. In this respect, the Committee requests the Government to take the necessary measures to ensure that all workers in the public sector, including those engaged under item 029 of the general state budget, benefit from the rights and guarantees set out in the Convention. The Committee requests the Government to keep it informed on this subject.

Tripartite National Committee. Finally, the Committee previously requested the Government to examine in the Tripartite National Committee the issues raised by UNSITRAGUA in 2005. In this regard, the Committee notes the Government’s indication that, due to the new composition of the Tripartite Committee on International Labour Affairs and the failure to appoint one of its members, it has not been possible to make progress in the work assigned to the tripartite subcommittees and councils. The pending issues raised by UNSITRAGUA will be examined in the context of the Legal Reform Subcommittee, which has just started to meet again; the pending agenda will be reviewed and it has been agreed on a tripartite basis that this issue will be re‑examined by the Tripartite Committee on International Labour Affairs. The Government is awaiting the communication from UNSITRAGUA to update the list of pending cases. It is also hoped to address the cases raised by UNSITRAGUA, in relation to which the Committee on Freedom of Association has recommended that investigations be undertaken, in the context of the Tripartite Committee. In this connection, the Committee notes that, according to the technical assistance mission, the Tripartite Committee requires technical assistance to improve its operation. The mission noted that the Tripartite Committee plays a valuable role in social dialogue and in slowing down undesirable legislative initiatives and draft texts, as well as in examining and resolving collective disputes, but that it does not succeed in putting forward joint proposals in relation to most of the pending problems. The Committee also notes the appreciation expressed by the mission that the Government (and the Labour Commission of the Congress) have requested additional technical assistance from the ILO to overcome the pending problems. The Committee requests the Government to continue keeping it informed of the work of the Tripartite Committee on International Labour Affairs, as well as that of the Legal Reform Subcommittee and the mechanism for rapid intervention in cases. The Committee invites the Government to take the necessary measures in order to ensure that the issues raised by the Guatemalan Trade Union Movement in its communication of 27 August 2007 are also examined by the Tripartite Committee.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s reply to the comments made by the International Confederation of Free Trade Unions (ICFTU) of 31 August 2005, and the Trade Union Confederation of Guatemala (UNSITRAGUA), of 26 August 2006, relating to matters concerning the legislation and the application of the Convention in practice that are already under examination by the Committee, as well as acts of violence, including murder, death threats and the circulation of blacklists of trade union representatives, the persecution of workers because of the establishment of a trade union, the subcontracting of workers with a view to undermining the union in a banking establishment, and threats and acts of violence against the judicial labour authorities, resulting in a situation of grave impunity and the denial of the right to strike. The Committee observes that these allegations are being examined in the context of Cases Nos. 2017 and 2050, 2241, 2259, 2341 and 2413, which are currently before the Committee on Freedom of Association.

In its previous observation, the Committee noted the comments made by UNSITRAGUA and the National State Union Workers’ Federation (FENASTEG) indicating that the Civil Service Bill establishes a percentage that is too high for the establishment of trade unions and restricts the right to strike. In this respect, the Committee notes the Government’s indication that the Bill is the subject of consultations with trade union organizations, that it was submitted to the Tripartite Committee on International Labour Affairs and that Congress has met federations and confederations to discuss the matter. The Committee hopes that the Bill that emerges from the process of consultation will be in full conformity with the provisions of the Convention and it requests the Government to keep it informed of the respective legislative developments. The Committee reminds the Government that the technical assistance of the Office is at its disposal.

Finally, the Committee requests the Government, in accordance with the regular reporting cycle, to provide its observations for the Committee’s next session in November-December 2007 on all the issues relating to the legislation and the application of the Convention in practice raised in its previous observation in 2005 (see 2005 observation, 76th Session).

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report, the discussion in the Conference Committee on the Application of Standards in June 2005 and the various cases currently before the Committee on Freedom of Association.

The Committee notes the comments on the application of the Convention made by the Trade Union Confederation of Guatemala (UNSITRAGUA) and the National State Union Workers’ Federation (FENASTEG). The Committee notes that UNSITRAGUA’s comments refer to the Government’s statements in its report of 2004 (for example, concerning the functions of the labour inspectorate, the declaration of strikes as being unlawful, the establishment of trade unions in export processing industries (maquila), procedures for the registration of trade union organizations, etc.) and that it also refers to acts of interference by the Government in trade union affairs on a ranch and in a sugar processing plant. The Committee suggests that the general matters raised by UNSITRAGUA could be examined in the National Tripartite Committee and that the specific acts of interference by the Government in trade union affairs could be examined in the framework of the rapid intervention mechanism to examine complaints concerning violations of trade union rights, established following the direct contacts mission in 2004 and which, according to the Government, has begun to be operational. The Committee therefore requests that the Government and UNSITRAGUA examine these matters in the above bodies.

With regard to the comments by UNSITRAGUA and FENASTEG criticizing a Civil Service Bill (the trade union organizations indicate that, among other violations of labour rights, the percentage required to establish trade unions is too high, restrictions are placed on the exercise of the right to strike, etc.), the Committee notes the Government’s indication that the Bill is still at the consultation stage and it will be discussed with various institutions, including trade union organizations. Under these conditions, the Committee hopes that the Bill which emerges from the consultation process will be in full conformity with the provisions of the Convention and asks the Government to provide information in its next report on any developments in this respect. The Committee reminds the Government that the Office’s technical assistance is at its disposal.

The Committee also notes the comments on the application of the Convention made by the World Confederation of Labour (WCL), referring to matters already raised by the Committee.

1.        Acts of violence against trade unionists

The Committee notes the Government’s comments on this subject, and particularly that: (1) it recognizes that there is an institutional weakness relating to the investigation of any crime committed in Guatemala and that, although acts of violence have clearly decreased considerably, it is evidently disturbing that the investigations have not been completed, for which reason the Government is making efforts to ensure that the Office of the Public Prosecutor completes the investigations; (2) it is considered important to discuss a mechanism to protect trade unionists, as recommended by the direct contacts mission in 2004, but it has to be emphasized that everyone requires protection, and particularly those working to enforce justice, and as the process of adapting the programme that is to be implemented for the latter is nearing completion, the programme for the protection of trade unionists is now being given priority; and (3) following the complaints made by workers’ representatives in the Tripartite Committee on International Labour Affairs, the competent bodies have been directed to investigate them and to provide protection to the persons under threat.

The Committee expresses deep concern at the acts of violence against trade union leaders and members which, according to the Government, continue to be reported. The Committee emphasizes that trade union rights can only be exercised in a climate that is free of violence and expresses the sincere hope that the protection mechanism for trade unionists will become operational in the near future. It also requests that the Government provide information in its next report on any developments in this respect. The Committee trusts that the Government will make every effort to ensure full respect for the human rights of trade unionists.

2.        Legislative problems

The Committee recalls that for many years it has been commenting on the following provisions which raise problems of conformity with the Convention:

–      restrictions on the establishment of organizations in full freedom (the need to have half plus one of those working in the occupation to establish industry trade unions, under section 215(c) of the Labour Code), delays in the registration of trade unions or refusal to register them;

–      restrictions on the right to elect trade union leaders in full freedom (the need to be of Guatemalan origin and to be a worker in the enterprise or economic activity in order to be elected a trade union leader, under sections 220 and 223 of the Labour Code);

–      restrictions on the free financial administration of trade union organizations under the Organic Act on supervision of the tax administration, which in particular allows inspections without prior notice;

–      restrictions on the right of workers’ organizations to organize their activities freely (under section 241 of the Labour Code, strikes are declared not by a majority of the voters, but by a majority of the workers); the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in services related to fuel, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996); labour, civil and penal sanctions applicable to strikes involving public servants or workers in specified enterprises (sections 390(2) and 430 of the Penal Code and Decree No. 71‑86).

The Committee notes the Government’s indication that the representatives of employers and workers are analysing all the legal reforms with a view to resolving: the problems arising in relation to the reform initiatives of 2003; the shortcomings in the penal legislation which are in violation of freedom of association; all the aspects of Conventions Nos. 87 and 98; the provisions setting out the requirements to hold office on trade union executive committees; the substantive and procedural reforms, the legal criteria to establish the majority of votes required to call a strike and clarification of the legal definition of essential services in relation to the exercise of the right to strike.

The Committee also notes the Government’s indication in this respect that: (1) due to the importance of submitting a proposed reform of the Labour Code, meetings of the Tripartite Committee on International Labour Affairs (CTAIT) are held every week and the reform is the only item on the agenda; (2) meetings have been held between the CTAIT and the Labour Commission of the Congress, in which the importance has been acknowledged of making reform proposals which are supported by tripartite consensus, for which purpose joint work is being carried out; and (3) many subjects on which the Committee of Experts suggested legislative changes are problems of interpretation because the constitutional principle is applicable that, in the event of conflicts of labour law, the most favourable provision for workers prevails, as a result of which many of the problems raised have already been resolved as subsequent legislation, irrespective of its source or hierarchical rank, has superseded the legal provisions identified as being problematic by the Committee (the Government indicates that this is the case of Government Agreement No. 700-2003 respecting essential public services in which compulsory arbitration can be imposed, on which the Committee had commented).

Under these conditions, noting that the Government and the social partners have embarked upon a process of analysis with a view to carrying out the required amendments of the legislation to bring it into conformity with the Convention, the Committee hopes that the necessary legislative reforms will be undertaken in the near future and that, in order to avoid any possible ambiguity, those provisions which have been superseded by subsequent laws will also be repealed. The Committee requests the Government to provide information in its next report on any developments in this respect.

3.        Other matters

In its previous observation, with reference to the exercise of trade union rights in the export processing industry, the Committee requested the Government to provide information on any complaint relating to the exercise of trade union rights in this sector, the corresponding administrative or judicial decisions and the manner in which compliance with the rights laid down by the Convention is secured in that sector. The Committee notes from the Government’s report that: (1) with reference to the various investigations that have been commenced, when the general labour inspectorate has made comments, employers have guaranteed compliance with the minimum rights of workers and in some cases of failure to comply with labour provisions administrative action has been taken to impose a penalty on the employer for breach of labour law; (2) at the present time, following a ruling by the Constitutional Court, inspectors are not empowered to adopt administrative measures or to impose fines, for which reason complaints are made to labour tribunals so that they can impose penalties for violations of labour laws; (3) in the context of monitoring and inspection to enforce compliance with labour laws, labour inspectors have taken action and have warned employers to comply with certain legal requirements, following complaints; and (4) cooperation and support has been requested from the ILO Office in San José in Costa Rica for the holding of the first national seminar on labour rights and freedom of association in export processing industries, which is due to be held soon. Under these conditions, while recalling that the Government gave assurances to the direct contacts mission in 2004 that the tripartite seminar on the general issue of compliance with trade union rights in export processing industries would envisage a plan of action to be evaluated as part of the follow-up activities, the Committee requests the Government to continue making efforts to ensure compliance in this sector with the rights set forth in the Convention. The Committee also asks the Government to provide information in its next report on any complaints made in export processing industries of violations of trade union rights over the past two years, and their outcome.

Finally, the Committee notes that UNSITRAGUA and the International Confederation of Free Trade Unions (ICFTU) recently sent comments on the application of the Convention. The Committee requests that the Government provide its observations thereon.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report, the report of the direct contact mission which took place in Guatemala from 17-20 May 2004, the discussion which took place in the Conference Committee in June 2004 and the comments on the application of the Convention submitted by the following organizations: Trade Union of Workers of Guatemala (UNSITRAGUA), the World Confederation of Labour (WCL) and the International Confederation of Free Trade Unions (ICFTU). The Committee also notes the Government’s reply to many of these comments. The Committee invites the Government to examine in the National Tripartite Committee the issues raised by UNSITRAGUA, many of which have been submitted to the Committee on Freedom of Association or refer to problems of interpretation relating to legislation or jurisprudence. The Committee requests the Government to keep it informed in this regard.

The Committee welcomes the fact that the Government has extended the mandate of the direct contact mission in the context of Convention No. 98 to the issues raised in the context of the application of Convention No. 87.

The Committee notes the Government’s statements in its detailed report. The Committee notes that: (1) the labour inspectorate has duties within the new system of sanctions and precise instructions have been issued to inspectors for the effective safeguarding of trade union rights; it has also dealt with all complaints received, resolving them through conciliation or applying the corresponding sanction; (2) the Government indicates that the "pro operario" principle is contained in the Constitution and allows the interpretation of certain matters raised by the Committee of Experts since that principle allows the most favourable standard to prevail; (3) in the last three years, with regard to a wave of strikes, there has been a declaration of illegality and a declaration of legality; the latter is partly due to the reluctance of civil society to use institutional means for resolving labour disputes; (4) in May 2003, a national trade union requested technical assistance from the Ministry to ascertain legal aspects concerning industry trade unions; this may result in the formation of the first industry trade union; (5) there are 1,640 registered trade unions, including 389 which are active (56 of these were set up in 2002 and 52 in 2003); two trade unions with 53 members are registered and active in the export processing sector; the total number of members in the country is 24,554; solidarist associations exist in some 550 enterprises and account for 100,000 members; (6) the registration of trade union organizations is carried out within a reasonable time, as far as possible in line with the period laid down in the Labour Code; some delays are the result of omissions by the applicants; the Government will provide information on the average time for the registration of unions; (7) there is no knowledge of the Public Prosecutor’s Office having initiated penal or civil actions against public servants in the case of a strike; and (8) trade union organizations are exempt from paying taxes but they must be entered in the tax register, even though in principle they cannot be subject to taxation.

1. Acts of violence against trade unionists. The Committee notes the information obtained by the direct contacts mission which was supplied by the Special Public Prosecutor’s Office responsible for investigating offences against trade union members. According to this information, during the period 2003-04, one trade unionist was the subject of an attempted murder, another suffered serious injuries, 30 cases involved threats and ten offences involved coercion. The mission report indicates that physical violence has decreased significantly but has not completely disappeared, while the number of cases involving threats and coercion has increased considerably. It should also be emphasized that, according to the information from the Special Public Prosecutor’s Office and the Government, the perpetrators in the murder cases (three cases in 2001 and one attempted murder in June 2002) have been identified but all cases relating to murder and other offences are still at the investigation stage. The Committee expresses its grave concern at this situation and observes that the WCL alleges that criminal proceedings are extremely slow and impunity is the norm in cases concerning trade unionists.

The Committee notes that, among the commitments made by the Government during the mission, the Ministry of Labour undertook, in the case of death threats or aggression towards trade unionists or employers, to arrange with the Ministry of the Interior the necessary personal protection measures for them, if requested by the persons in question.

The Committee emphasizes that trade union rights can only be exercised in an atmosphere which is free of violence and expresses the sincere hope that the Government will make every effort to ensure the full respect of the human rights of trade union members. The Committee requests the Government to provide information on any offences against trade unionists which are reported to the Special Public Prosecutor’s Office.

2. Detention of CGTG trade union leaders Mr. Rigoberto Dueñas and Mr. Victoriano Zacarías. This matter was reported by the World Confederation of Labour (WCL). The Committee notes that the mission visited these leaders in prison and interviews were held with the members of the court responsible for judging Mr. Rigoberto Dueñas for the purpose of stating the conclusions and recommendations of the Committee on Freedom of Association with regard to the detention of this leader (see 334th Report of the Committee, Case No. 2241, paragraphs 524 and 526).

The Committee notes with satisfaction that the abovementioned court acquitted trade union leader Mr. Rigoberto Dueñas in August 2004 and that the other court acquitted Mr. Victoriano Zacarías.

The Committee is grateful to the Ministry of Labour for taking all necessary steps to ensure that the mission could hold interviews with the detained trade union leaders Mr. Rigoberto Dueñas and Mr. Victoriano Zacarías and with the judicial authorities which had competence in these cases.

3. Legislative problems. The legislative provisions which pose problems of conformity with the Convention are as follows:

-  restrictions on the formation of organizations in full freedom (under section 215 (c) of the Labour Code, the need to have "50 per cent plus one" of those working in the enterprise to form industry trade unions), delays in the registration of trade unions or refusal to register them;

-  restrictions on the right to elect trade union leaders in full freedom (need to be of Guatemalan origin and to be a worker in the enterprise or economic activity in order to be elected a trade union leader, under sections 220 and 223 of the Labour Code);

-  restrictions on the free financial administration of trade union organizations under the Organic Act on supervision of the tax administration, which allows in particular inspections without prior notice;

-  restrictions on the right of workers’ organizations to perform their activities freely (under section 241 of the Code, strikes are declared not by a majority of the voters but by a majority of the workers; the possibility of imposing compulsory arbitration in the event of a dispute in the public transport sector and in fuel-related services, and the need to determine whether strikes for the purpose of inter-union solidarity are still prohibited (section 4(d), (e) and (g) of Decree No. 71-86 amended by Legislative Decree No. 35-96 of 27 March 1996)); labour, civil and penal sanctions applicable to strikes involving public servants or workers in specified enterprises (section 390(2) and 430 of the Penal Code and Decree No. 71-86).

The Committee notes that the Government expressed to the mission its willingness to make progress in relation to the issues raised by the Committee of Experts. The Committee welcomes certain measures that were taken and commitments of varying scope that were made by the Government during the mission, which were approved in the presence of the mission by the Tripartite Committee on International Labour Affairs, and it emphasizes in particular that:

(1)  the Ministry submitted to the Tripartite Committee the legislative issues raised in the Committee of Experts so that it could examine the latter periodically with a view to possible amendments;

(2)  the Ministry requested the Labour Committee of the Congress of the Republic to consult the Tripartite Committee on International Affairs concerning initiatives awaiting approval with regard to substantive and procedural reforms;

(3)  the Ministry agrees to the setting up of a rapid intervention mechanism for the examination of complaints intended for the ILO so that an attempt can be made to find a solution within 15 days to the problems put forward before the complaints in question are transmitted to the ILO. This mechanism would enable the ministerial authorities to follow special procedures and the matter in question might be entrusted to a subcommittee of the Tripartite Committee;

(4)  the Ministry will organize a tripartite seminar on the general problems in the export processing sector regarding trade union rights; the seminar will be attended by the ILO and will provide for a plan of action which will be evaluated in the context of follow-up activities.

The Committee notes that the Tripartite Committee on International Labour Affairs has held several meetings with the Labour Committee of the Congress of the Republic. The Committee requests the Government to provide information on the fulfilment of all the commitments made during the mission and expresses the hope that the Government will be in a position in the near future to provide information on progress made in relation to the abovementioned legal provisions. As indicated in the mission report, the Committee emphasizes the number of pending issues and notes the gravity of some of them which have been continuing for years and which include key aspects of trade union rights. The Committee therefore urges the Government to make every effort to ensure that the legislative provisions in question are modified or abolished.

4. Other matters. The Committee also notes that the draft Civil Service Act and Government Agreement No. 700-2003 concerning essential public services in which compulsory arbitration may be imposed, raise problems of conformity with the Convention. These specifically include as essential public services urban and non-urban transport of passengers or freight, postal services, hotels and other lodging premises and their services, social communication media involving the written word, radio, television or any other electronic medium, port and airport operations, etc.

The Committee also notes that, according to the mission report, there is some confusion as regards the competence of the Ministry of Labour in the case of violations of trade union rights in the public sector. The Committee emphasizes the importance of clearly determining the authority responsible for examining complaints concerning the violation of trade union rights.

In general, the Committee notes that, in its comments on the application of the Convention, the ICFTU and UNSITRAGUA refer to a large number of major problems of application of the Convention in practice, which confirm the impact of the legal provisions the amendment or abolition of which has been called for by the Committee of Experts. The ICFTU emphasizes that section 390 of the Penal Code, which provides for imprisonment of one to five years for any persons who perform acts with the purpose of paralysing or disrupting the functioning of enterprises which contribute to the economic development of the country and with the purpose of harming national production, is still in force. The Committee notes that the Government has confirmed that this provision is still in force. The Committee notes that UNSITRAGUA indicates that the only case of a legal strike referred to by the Government is the one of 2002 and not even one industry trade union has been able to be formed.

As regards the exercise of trade union rights in the export processing industry, the Committee notes that, according to the Government, there are currently two trade unions and a total of 53 members. The Committee notes that the mission report mentions the setting up of a specialized labour inspection unit for the export processing industry (where four collective agreements have been signed). The Committee requests the Government to provide information on any complaint concerning the exercise of trade union rights which occurs in that sector, on the corresponding administrative or judicial decisions, and on the manner in which respect for the rights laid down by the Convention for that sector is ensured.

The Committee notes the statements to the mission by the trade union confederations, according to which, in Guatemala, trade unions have a monopoly over collective bargaining; no cases have occurred of collective bargaining undertaken by solidarist associations and the leaders of those associations do not participate in joint committees.

The Committee hopes that it will be able to note concrete progress on the abovementioned points in the near future.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report and the comments made by the UASP, ICFTU, UGT and UNSITRAGUA in 2002 and the Government’s reply.

According to UNSITRAGUA, section 215(c) of the Labour Code makes it impossible in practice to establish industry trade unions by requiring them to have a membership of workers representing "50 per cent plus one of the workers in the occupation", that is in the industry concerned. The Committee has considered that the number of workers required to establish an industry trade union, in addition to being indeterminate, is indeed excessive and makes it extraordinarily difficult to establish this type of trade union. The Committee notes that the Government has not referred to this matter and requests the Government to take measures to amend the legislation to facilitate the establishment of industry trade unions.

UNSITRAGUA also criticized the draft Code of Labour Procedure. The Committee requested that the new text should be the subject of extensive consultations with the most representative organizations of workers and employers and that their points of view should be duly taken into account. The Committee proposed that the Government should examine this draft text in the context of the technical assistance that it requested. The Committee notes that, according to the Government, the text of the above Code is before the Congress of the Republic and that all those concerned can participate actively in the consultation process that is currently being undertaken in this context. The Committee once again proposes that the above draft text should be examined in the context of the technical assistance requested from the ILO.

Finally, the Committee requested the Government to provide information on the exercise of trade union rights in export processing enterprises (the number of enterprises, the number of organizations and the number of unionized workers), as well as on the number of solidarist associations in the country and on complaints of violations of trade union rights related to such associations. In its report, the Government indicates that there are 97 trade unions, but only two in the export processing sector, with a membership of 52 workers; in both cases, when disputes have arisen, the State has intervened and collective accords have been concluded. The Government refers to the various measures and bodies for compliance with labour rights in export processing enterprises and indicates that export processing enterprises which have not complied with them have been punished (fines, suspension of fiscal privileges and even the closure of enterprises). The Committee concludes that the data available show that trade union rights are exercised to a very meagre extent in export processing enterprises, as indicated by the ICFTU, and requests the Government to take measures to remedy this situation. The Committee once again requests the Government to indicate the number of solidarist associations in the country and to provide information on complaints of violations of trade union rights related to solidarist associations, concerning which the ICFTU has expressed its concern.

The UGT indicates that the registration of trade union leaders with the Ministry of Labour takes up to one year. Moreover, there are very few enterprise trade unions and no more than 3 per cent of salaried employees are members of a trade union. The Government attaches to its report statistics which show that in 2002 some 56 new trade union organizations were registered. It indicates that the current Ministry of Labour is very open to the registration of trade unions and that it ensures compliance with standards respecting trade union rights and provides advice to workers’ groups which request it. The Committee notes this information and requests the Government to provide information on the total number of complaints of violations of trade union rights, with an indication of the types of problems raised.

The Committee requests the Government to provide its comments on the observation by UNSITRAGUA, dated 28 February 2003, relating to the labour penalties applicable, both penal and civil, in cases of strikes by public officials.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report. It notes the comments made by the Trade Union and People’s Action Unit (UASP), the International Confederation of Free Trade Unions (ICFTU), the Union of Guatemalan Workers (UGT), the Trade Union Confederation of Guatemala (UNSITRAGUA) and the World Confederation of Labour (WCL), and the Government’s response to some of the issues raised.

1. Murders, acts of violence and death threats against trade unionists. The Committee notes with concern that in their comments on the application of the Convention, the trade union organizations refer to serious acts of violence against trade unionists. Furthermore, various cases before the Committee on Freedom of Association (Cases Nos. 1970 and 2179), as well as comments by the ICFTU and the UGT, confirm that there are many murders, acts of violence, death threats and intimidation against trade unionists. In its previous observation, the Committee noted and welcomed the Government’s indication that a special unit had been set up in the Public Prosecutor’s Office and had begun operations to improve the efficiency of the criminal investigations into acts of violence against trade unionists. The Committee stresses the gravity of the situation and points out that trade union rights can be exercised only in a climate which is free of violence and pressure. The Committee expresses the firm hope that the Government will take prompt action to ensure that basic human rights and fundamental freedoms, which are essential to the exercise of trade union rights, are effectively observed. The Committee further requests the Government to provide information on the results of the work done by the above unit, including relevant statistical data.

2. Requirement under the Constitution to be of Guatemalan origin in order to be a trade union leader and requirement to be actually working in the enterprise or the occupation in order to be eligible for trade union office (sections 220 and 223 of the Labour Code). The Committee notes from the Government’s report that there have been no new developments in the legislation on these subjects.

The Committee points out that it is for trade union statutes and not the legislation to lay down the eligibility criteria for trade union office. The Committee has nonetheless recognized that a State may require foreign workers to have resided in the country for a reasonable period before becoming eligible for trade union office. With regard to section 223 of the Labour Code, the Committee points out that it may be in the interest of branch or industry unions to have some officers with legal, economic or other experience, without their necessarily working in the occupation in which the trade union operates. The Committee therefore requests the Government to inform it of any measures taken to amend the legislation and the Constitution so as to ensure that workers are able to determine in full freedom the conditions for the election of their officers and hence appoint representatives of their own choosing.

3. Requirement that, in order to call a strike, the workers must constitute 50 per cent plus one of those working in the enterprise (section 241 of the Labour Code). The Committee recalls that in its previous comments it pointed out that in votes on the calling of strikes only the votes cast should be counted in calculating the majority and that the quorum should be set at a reasonable level. The Committee asks the Government to take steps to amend the legislation so that only votes cast are counted in reckoning the majority.

4. Imposition of compulsory arbitration without the possibility of resorting to a strike in public services which are not essential in the strict sense of the term, such as public transport and fuel-related services, and the prohibition of sympathy strikes (section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 May 1996). The Committee requested the Government to indicate, in the light of the new version of section 243 of the Labour Code and its definition of essential services in which a minimum service may be imposed (now limited to circumstances endangering the life, personal safety or health of the whole or part of the population), whether or not the restrictions set out in Legislative Decree No. 35-96 had been repealed by implication. The Committee took note of the Government’s undertaking to continue to implement the recommendations of the Committee of Experts and noted that on 8 February 2002 a high-level labour committee was established, comprising Ministers of State and representatives of the Trade Union and People’s Action Unit (USAP) which was to examine such matters, including the repeal of Legislative Decree No. 35-96. The Government’s report, while not providing more information in this respect, points out that there has already been, implicitly, a partial repeal of the decrees criticized by the Committee. The Committee insists on the importance it attaches to the precise determination of trade union rights in legislation and thus requests the Government to take the necessary measures to formally repeal the abovementioned limitations in Decree No. 71-86 as amended by Decree No. 35-96.

5. Assertion by the trade union federations that in recent years there have been no instances of legal strikes. The Committee asked the Government to provide statistics on both the legal and the illegal strikes that had occurred in the past two years and to state, in the latter case, why these strikes were declared illegal. The Committee notes that, according to the Government’s report, in recent months two strikes have been called in the public sector and in a third instance, the workers in the enterprise concerned sought to have the strike declared legal but the enterprise succeeded in delaying the process until the collective agreement was signed. The Committee requests the Government to continue to provide information on the number of legal and illegal strikes that have occurred in the last three years, indicating the sectors involved.

The Committee notes that the Government has submitted its comments to the Committee on Tripartite Affairs and that the Labour Code is currently being reformed. The Committee hopes that it will be able to note in the near future that significant progress has been made in the areas mentioned.

The Committee noted previously that the Government had requested technical assistance from the ILO. It further notes in this connection that the Government is of the view that the direct contacts mission requested in connection with Convention No. 98 by the Committee on the Application of Standards of the International Labour Conference would be more appropriate under the new Government that would take office after the elections (January 2004).

Lastly, the Committee asks the Government to send its reply to the comments of UNSITRAGUA (17 July, 25 August and 1 September 2003) and the WCL (28 August 2003).

In addition, the Committee is addressing a request on certain points directly to the Government.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report and the comments made by UASP, ICFTU, FENASTEG, UGT and UNSITRAGA.

According to UNSITRAGA, section 215(c) of the Labour Code makes it impossible in practice to establish industry trade unions by requiring them to have a membership of workers representing "50 per cent plus one of the workers in the occupation", that is in the industry concerned. The Committee considers that the number of workers required to establish an industry trade union, in addition to being indeterminate, is indeed excessive and makes it extraordinarily difficult to establish this type of trade union.

UNSITRAGA also criticizes the draft Code of Labour Procedure. The Committee requests that the new text should be the subject of extensive consultations with the most representative organizations of workers and employers and that their points of views should be duly taken into account. The Committee proposes that the Government should examine this draft text in the context of the technical assistance that it has requested.

Finally, the Committee requests the Government to provide information on the exercise of trade union rights in export processing enterprises (the number of enterprises, the number of organizations and the number of unionized workers), as well as on the number of solidarist associations in the country and on complaints of violations of trade union rights related to such associations.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report. The Committee notes the comments made by the Trade Union and People’s Action Unit (UASP), dated 8 June 2001, and the Government’s reply in this respect. The Committee also notes the discussions in the Conference Committee (June 2002) concerning the application of the Convention. The Committee notes the comments concerning the application of the Convention made by the International Confederation of Free Trade Unions (ICFTU) (10 January and 18 September 2002) and by the Union of Guatemalan Workers (October 2002), and the comments of the National State Union Workers Federation of Guatemala (FENASTEG) and the Trade Union Confederation of Guatemala (UNSITRAGUA), forwarded by the Government with its report.

1. Murders, acts of violence and death threats against trade unionists. The Committee notes with concern that in their comments on the application of the Convention, the trade union organizations refer to serious acts of violence against trade unionists. Furthermore, various cases before the Committee on Freedom of Association (Cases Nos. 1970 and 2179) confirm the existence of a high number of murders, acts of violence and death threats against trade unionists. The Committee notes and welcomes the Government’s indication of the establishment of a special unit in the General Inspectorate, which has begun operations, to improve the effectiveness of penal investigations of acts of violence against trade unionists, a unit which is currently investigating 50 cases. The Committee emphasizes the gravity of the situation and the fact that trade union rights can be exercised only in a climate which is free of violence and pressure. The Committee expresses the firm hope that the Government will make diligent efforts to ensure the effective observance of human rights and the fundamental freedoms essential to the exercise of trade union rights.

2. Requirement under the Constitution to be of Guatemalan origin to be a trade union leader and requirement to be actually working in the enterprise or the occupation in order to be eligible for trade union office (sections 220 and 223 of the Labour Code). The Committee notes from the Government’s report that, in view of the constitutional hierarchy of the provisions preventing foreign nationals from exercising trade union office, the legislation cannot contradict this constitutional provision. The Government adds that it is natural that the leaders of a trade union in an enterprise should be workers in that enterprise and that the leaders of branch unions should be working in the respective occupation.

The Committee emphasizes that it is for trade union statutes and not the legislation to lay down the eligibility criteria for trade union office. Nevertheless, the Committee has recognized a State may require foreign workers to have resided in the host country for a reasonable period before they are eligible to be elected to trade union office. The Committee points out that branch or industry unions may have an interest in some officers, having legal, economic or other experience, without their necessarily working in the occupation in which the trade union operates. The Committee therefore requests the Government to amend the legislation and the Constitution to ensure that workers’ organizations can determine in full freedom the conditions for the election of their officers and can therefore elect the representatives of their own choosing.

3. Requirement that to call a strike the workers must constitute 50 per cent plus one of those working in the enterprise (without including in the total workers in positions of confidence or who represent the employer) (section 241 of the Labour Code). The Committee notes the Government’s undertaking to continue giving effect to the recommendations of the Committee of Experts and that this matter is being discussed in the Tripartite Commission on International Affairs. The Committee recalls that in its previous comments it pointed out that only the votes cast should be counted in calculating the majority and that the quorum should be set at a reasonable level. The Committee requests the Government to take measures to amend the legislation in the sense set out above.

4. Imposition of a penalty of imprisonment of from one to five years for anyone engaged in acts intended to paralyse or disrupt the running of enterprises which contribute to the economic development of the country with the intention of causing damage to national production (section 390(2) of the Penal Code). The Committee had requested the Government to state whether, with the repeal of section 257 of the Labour Code (which provided for the arrest and trial of persons publicly attempting unlawful strikes), section 390(2) of the Penal Code had ceased to apply in the event of strikes. The Committee notes with interest the Government’s statement that section 390(2) of the Penal Code is no longer in force and is not therefore applicable in the event of strikes.

5. Imposition of compulsory arbitration without the possibility of resorting to a strike in public services which are not essential in the strict sense of the term, such as public transport and energy provision, and the prohibition of sympathy strikes by trade unions (section 4(d), (e) and (g) of Legislative Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 May 1996). The Committee requested the Government to indicate, in the light of the new version of section 243 of the Labour Code and its definition of essential services in which a minimum service may be imposed (now limited to circumstances endangering the life, personal safety or health of the whole or part of the population), whether the restrictions set out in Legislative Decree No. 35-96 have or have not implicitly been repealed. The Committee notes the commitment expressed by the Government to continue implementing the recommendations of the Committee of Experts and the fact that on 8 February 2002 a High-Level Labour Committee was established, composed of the Ministers of State and representatives of the Trade Union and People’s Action Unit (UASP), in which these matters will be examined, including the repeal of Legislative Decree No. 35-96. The Government’s report, although it provides no further information, indicates that the decrees criticized by the Committee have already been implicitly partially repealed. The Committee emphasizes the importance of trade union rights being set out with precision in the law and therefore requests the Government to take the necessary measures to abolish the restrictions referred to above, which are contained in Legislative Decree No. 71-86, as amended by Decree No. 35-96.

6. Claims by the trade union federations that in recent years there have been no cases of legal strikes. The Committee notes that, according to Government’s report, the trade union federations have not complied with the provisions of the Labour Code. The Government adds that, for example, a legal strike took place in the municipality of Jalapa this year and that in the public sector actions similar to strikes have been undertaken, for example in the health sector, in judicial bodies and the Department of the Attorney-General. The Committee requests the Government to provide statistics on both legal and illegal strikes over the past two years, with an explanation in the latter case of the reasons that they were declared illegal.

7. Comments made by trade union organizations. The Committee notes that the Government has not replied to the majority of the comments made by trade union organizations. It is raising these matters in a direct request.

Finally, the Committee notes that the Government has requested technical assistance from the ILO. The Committee reminds the Government that the Office is at its disposal.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report and the report on the direct contacts mission which took place in Guatemala from 23-27 April 2001. It also notes the discussion held in the Conference Committee on the application of Convention No. 87. In addition, the Committee notes the comments made by the Trade Unions and People’s Action Unit (UASP), dated 8 June 2001, and the Government’s reply to them. The Committee requests the Government to supplement its reply by answering point by point the questions raised by the UASP.

Legislative matters

The Committee notes with satisfaction the adoption by the Congress of the Republic of Legislative Decree No. 13-2001 of 25 April (during the direct contacts mission) and Legislative Decree No. 18-2001 of 14 May, which settle a number of issues raised by the Committee. Specifically, these Legislative Decrees:

-  eliminate the strict supervision of trade union activities by the Government (section 211 of the Labour Code);

-  eliminate the requirement that members of a trade union executive committee must have no criminal record and must be able to read and write (former sections 220 and 223);

-  eliminate the obligation to obtain a two-thirds majority of the members of a trade union in order to call a strike (former section 222) and instead provides for a majority of 50 per cent plus one of the members making up the quorum of the assembly;

-  eliminate the requirement, in order to call a strike, of at least two-thirds of the workers employed in the enterprise (former section 241) and instead provides for 50 per cent plus one of the workers employed in the enterprise, excluding trusted workers and workers representing the employer. The Committee nonetheless points out that only the votes cast should be counted in calculating the majority and that the quorum should be set at a reasonable level;

-  eliminate the prohibition on strikes or suspension of work by (1) agricultural workers during harvests (former section 243(a)), and (2) workers of enterprises or services whose interruption would, in the opinion of the Government, seriously affect the national economy (section 243), so that it is now possible for the President of the Republic to suspend a strike only when it seriously affects the activities and public services essential for the country (new final paragraph of section 243); in essential public services, the parties and the judicial authority participate in determining the minimum service;

-  repeal the provision ordering the arrest and trial of anyone publicly attempting a strike or unlawful work stoppage (former section 257); and

-  eliminate the requirement for the courts (in the event of unlawful strikes or work stoppages) to order the national police to ensure continuity of work (former section 255) and instead provides that the courts "may" order and execute precautionary measures to ensure the continuity of activities and the right to work of persons wishing to work;

-  eliminate (implicitly, by virtue of the new section 222 of the Labour Code) the requirement of two-thirds of union members in order to sign a draft collective agreement, which had been provided for in section 2(d) of the Regulation of 19 May 1994 concerning collective agreements.

The Committee observes, however, that the abovementioned legislative decrees do not cover other provisions of the legislation which are not in conformity with the Convention, namely:

-  the requirement of being Guatemalan in order to establish a provisional trade union executive committee (it should be noted that this requirement derives from the National Constitution); and

-  the requirement to be actually working in the enterprise or the occupation in order to be eligible for trade union office (sections 220 and 223 of the Code).

The Committee requests that the Government take steps to bring the legislation fully into conformity with the Convention on these points.

With regard to the provision of the Penal Code imposing a penalty of imprisonment of from one to five years for anyone engaged in acts for the purpose of paralysing or disrupting the running of enterprises which contribute to the economic development of the country with the intention of causing damage to national production (section 390(2) of the Penal Code), the Committee asks the Government to state whether, with the repeal of section 257 of the Labour Code, which provided for the arrest and trial of persons publicly attempting unlawful strikes, section 390(2) of the Penal Code has ceased to apply in the event of strikes.

As regards the imposition of compulsory arbitration without the possibility of resorting to a strike in public services which are not essential in the strict sense of the term, such as public transport, energy provision, and the prohibition of sympathy strikes by trade unions (section 4(d), (e) and (g) of Legislative Decree No. 71-86, amended by Legislative Decree No. 35-96 of 27 May 1996), the Committee requests that the Government indicate, in the light of the new version of section 243 and its definition of essential services in which a minimum service may be imposed (now limited to circumstances endangering the life, personal safety or health of the whole or part of the population), whether the restrictions of Legislative Decree No. 35-96 have, by implication, been repealed.

Practical application

The Committee asks the Government to comment on the assertion by the trade unions that there have been no instances of legal strikes in recent years.

The Committee notes the murders, acts of violence and death threats against trade union members reported in Case No. 1970, examined by the Committee on Freedom of Association and the conclusions of the mission report in this connection. The Committee emphasizes that trade union rights can be exercised only in a climate which is free of violence and pressure. It expresses the very firm hope that the Government will make every effort to ensure effective observance of human rights and of the fundamental freedoms essential to the exercise of trade union rights.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee regrets to note that the Government’s report has not been received. Nevertheless, the Committee notes the discussions held in the Conference Committee on the Application of Standards in June 2000, as well as a previous report received from the Government in May 2000.

In the first place, the Committee notes with concern the conclusions of the Committee on Freedom of Association in Case No. 1970 in which it noted with deep concern the large number of acts of violence against trade union officials and members which have been alleged, including numerous murders and death threats (see the 323rd Report of the Committee on Freedom of Association, paragraph 284(a)). In this respect, the Committee shares the opinion expressed by the Committee on Freedom of Association that freedom of association can only be exercised in conditions in which fundamental human rights, and particularly those relating to human life and personal safety are fully respected and guaranteed (see ibid.).

The Committee recalls that for many years it has been criticizing the following provisions of the legislation:

-  the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Labour Code);

-  the requirement of being Guatemalan to establish a provisional trade union executive committee or to be elected as a trade union officer; to be an active worker at the time of election; and that at least three members of the executive committee are able to read and write (sections 220(d) and 223(b));

-  the requirement for the members of the provisional trade union executive committee to make a sworn statement that they have no criminal record and that they are active workers in the enterprise (section 220(d));

-  the obligation to obtain a two-thirds majority of the workers of the enterprise or workplace (section 241(c)) and of the members of a trade union (section 222(f) and (m)) to be able to call a strike;

-  the prohibition of a strike or suspension of work by agricultural workers during harvests, with a few exceptions (sections 243(a) and 249), and by workers of enterprises or services whose interruption would, in the opinion of the Government, seriously affect the national economy (sections 243(d) and 249);

-  the possibility of calling on the national police to ensure continuity of work in the event of an unlawful strike (section 255) and the detention and trial of persons who try to publicly call an illegal strike or suspension of work (section 257);

-  the imposition of a prison sentence ranging from one to five years for persons who carry out acts intended to paralyse or disrupt the functioning of enterprises which contribute to the economic development of the country with a view to jeopardizing national production (section 390(2) of the Penal Code);

-  the imposition of compulsory arbitration without the possibility of having recourse to strike action in public services which are not essential in the strict sense of the term, in particular public transport and services related to the supply of fuel, and the prohibition of inter-union sympathy strikes (section 4(d), (e) and (g) of Decree No. 71-86, amended by Legislative Decree No. 35-96 of 27 May 1996).

The Committee notes with interest that the President of the Republic has transmitted for adoption to Congress a Bill to amend or repeal some of the above provisions:

-  the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Labour Code);

-  the requirement that at least three members of the executive committee of a trade union be able to read and write (sections 222(d) and 223(b) of the Labour Code);

-  the requirement for the members of the provisional trade union executive committee to make a sworn statement that they have no criminal record (section 220(d) of the Labour Code);

-  the obligation to obtain a two-thirds majority of the workers of the enterprise or workplace (section 241(c) of the Labour Code) and of the members of a trade union (section 222(f) and (m) of the Labour Code) to be able to call a strike;

-  the prohibition of a strike or suspension of work by agricultural workers during harvests, with a few exceptions (sections 243(a) and 249 of the Labour Code), and by workers of enterprises or services whose interruption would, in the opinion of the Government, seriously affect the national economy (sections 243(d) and 249 of the Labour Code) (nevertheless, the Bill continues to prohibit strikes in other services which are not essential in the strict sense of the term, such as various types of transport and the fuel sector);

-  the possibility of calling in the national police to ensure the continuity of work in the event of an unlawful strike (section 255 of the Labour Code), even where there is no breach of the peace.

The Committee expresses once again the firm hope that in the very near future legislation will be adopted which has been the subject of tripartite consultations and which includes amendments to all the provisions criticized. The Committee requests the Government to provide information in its next report on any developments in this respect. The Committee reminds the Government that the Office’s technical assistance is at its disposal.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the information supplied by a Government representative to the Conference Committee in 1999 and the discussion which took place subsequently. The Committee also notes that, according to the information of the Government, the ILO has provided it with a draft to address the comments of the Committee, and the tripartite committee concerning international labour issues is preparing draft reforms by consensus to put before Congress. In this context, the Committee reiterates its earlier comments which refer to the following questions:

-- the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Labour Code);

-- the requirement of being Guatemalan to establish a provisional trade union executive committee or to be elected as a trade union officer; to be an active worker at the time of election; and that there are at least three members of the executive committee able to read and write (sections 220(d) and 223(b));

-- the requirement for the members of the provisional trade union executive committee to make a sworn statement that they have no criminal record and that they are active workers in the enterprise (section 220(d));

-- the obligation to obtain a two-thirds majority of the workers of the enterprise or workplace (section 241(c)) and of the members of a trade union (section 222(f) and (m)) to be able to call a strike;

-- the prohibition of a strike or suspension of work by agricultural workers during the harvests, with a few exceptions (sections 243(a) and 249) and of workers of enterprises or services whose interruption would, in the Government's opinion, seriously affect the national economy (sections 243(d) and 249);

-- the possibility of calling on the national police to ensure continuity of work, in the event of an unlawful strike (section 255) and the detention and trial of persons who try to publicly call an illegal strike or suspension of work (section 257);

-- the imposition of a prison sentence ranging from one to five years for persons who carry out acts intended to paralyse or disrupt the functioning of enterprises which contribute to the economic development of the country with a view to jeopardizing national production (section 390(2) of the Penal Code);

-- the imposition of compulsory arbitration without the possibility of having recourse to strike action in public services which are not essential services in the strict sense of the term, in particular public transport and services related to the supply of fuel and the prohibition of solidarity strikes (section 4(d), (e) and (g) of Decree No. 71-86, amended by Legislative Decree No. 35-96 of 27 May 1996).

The Committee expresses the firm hope that the Government will, as soon as possible, take the measures necessary to bring the legislation into full conformity with the provisions of the Convention, and requests it to provide information in its next report on all measures adopted in this regard.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's report and recalls its previous comments which referred to the following points:

-- the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Labour Code);

-- limiting the possibility of participating in the establishment of a provisional trade union executive committee or to be elected a trade union official to Guatemalan nationals (new paragraph, sections 220(d) and 223(b));

-- the requirement for the members of the provisional trade union executive committee to make a sworn statement to the effect that, amongst other matters, they have no criminal record and that they are active workers in the enterprise or self-employed workers (new paragraph (d) of section 220);

-- the requirement of being active workers at the time of election and that at least three are able to read and write (section 223(b));

-- the obligation to obtain a two-thirds majority of the workers of the enterprise or workplace (section 241(c)) and of the members of a trade union (section 222(f) and (m)), to be able to declare a strike;

-- the prohibition of a strike or suspension of work by agricultural workers during the harvests, with several exceptions (sections 243(a) and 249);

-- the prohibition of a strike or suspension of work by workers of enterprises or services, whose interruption would, in the Government's opinion, seriously affect the national economy (sections 243(d) and 249);

-- the possibility of calling upon the national police to ensure continuity of work, in the event of an unlawful strike (section 255);

-- the detention and trial of persons who try to publicly call an illegal strike or suspension of work (section 257);

-- the imposition of a prison sentence ranging from one to five years for persons who carry out acts intended not only to cause sabotage or destruction (which do not come within the scope of the protection offered by the Convention), but also to paralyse or disrupt the functioning of enterprises which contribute to the economic development of the country with a view to jeopardizing national production (section 390(2) of the Penal Code);

-- the imposition of compulsory arbitration without the possibility of having recourse to strike action in public services which are not essential services in the strict sense of the term, in particular public transport and services related to the supply of fuel (section 4(d) and (e) as amended by Order 35-96 of 27 May 1996).

With regard the last point, the Committee notes with interest that the Government, in accordance with its indications in its report, will begin to analyse the services which are not considered essential by the ILO supervisory bodies, for the purpose of the exercise of the right to strike.

The Committee also notes that, in accordance with the Government's statement in its report, almost all of the points raised by the Committee of Experts were submitted for consideration to the Tripartite Committee on International Affairs in April 1997 for the purpose of formulating a Bill, but that a consensus was not reached on the points which should be the subject of reforms. The Committee regrets the internal difficulties that have prevented the Tripartite Committee from meeting and obtaining a tripartite agreement in respect of the legislative amendments proposed by the Committee of Experts.

The Committee again expresses the firm hope that the Tripartite Committee will meet in the near future and will reach an agreement on the Bill which takes into account all the comments made. The Committee again hopes that in its next report the Government will inform it of the concrete measures adopted to bring both its law and practice into conformity with the requirements of the Convention.

The Committee requests the Government in its next report to inform it of the specific measures adopted in this respect.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the observations of the Confederation of United Unions of Guatemala (CUSG) on restrictions to the right to strike of state workers since the approval of legislative Decree No. 35-96 of 27 May 1996 which amends Decree No. 71-86 on freedom of association and regulation of striking by state workers.

In this respect, the Committee notes that amended section 4(e) provides for compulsory arbitration without the possibility of resorting to strike action in the public services such as airline services, public transport and services related to combustibles (d), which are not essential within the strict meaning as defined by the ILO supervisory bodies.

The Committee recalls that the right to strike may be restricted or even prohibited in essential services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey on freedom of association and collective bargaining, 1994, paragraph 159).

The Committee hopes that the Government will adopt appropriate measures so that workers and their organizations in services which are not essential within the strict meaning cited above will be able to exercise the right to strike if they so wish.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the Government's report, the information supplied by the Government representative to the Conference Committee on the Application of Standards in June 1996 and the discussions which took place in that Committee.

The Committee wishes to recall that its previous comments referred to:

- the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Labour Code);

- the requirement of Guatemalan nationality in order to form part of the provisional founding executive committee of a trade union or to be eligible for trade union office (new paragraph (d)) of section 220 and section 223(b));

- the requirement of a sworn statement from members of the provisional founding executive committee of a trade union to the effect that, amongst other matters, they have no criminal record and are active workers within the enterprise or are working on their own account (new paragraph (d) of section 220);

- the requirement that candidates must be active workers at the time of election and that at least three of them must be able to read and write (section 223(b));

- the requirement of a majority of two-thirds of the workers in the enterprise or production centre (section 241(c)) and of the members of a trade union (section 222(f) and (m)) for the calling of a strike;

- the prohibition of strikes or work stoppages by agricultural workers at harvest time, with a few exceptions (section 243(a) and 249);

- the prohibition of strikes or work stoppages by workers in enterprises or services in which the Government considers that a suspension of their work would seriously affect the national economy (sections 243(d) and 249);

- the possibility of calling upon the national police to ensure the continuation of work in the event of an unlawful strike (section 255);

- the detention and trial of persons who call for an illegal strike (section 257);

- the sentence of one to five years' imprisonment for persons who carry out acts intended not only to cause sabotage and destruction (which do not come within the scope of the protection provided by the Convention), but also to paralyse or disturb the functioning of enterprises contributing to the development of the national economy, with a view to jeopardizing national production (section 390, paragraph 2, of the Penal Code).

The Committee takes due note that, in accordance with the Government's indications, almost all the questions raised in the Committee of Experts' comments will be submitted for consideration to the already existing Tripartite Committee on International Affairs for the purpose of formulating a Bill. The Committee also takes note that the Government requests ILO collaboration to this effect.

The Committee once again expresses the firm hope that, in drawing up the Bill, the Tripartite Commission will take into account at an early date the comments previously made and that in its next report the Government will supply information on the specific measures adopted to bring both legislation and practice into conformity with the requirements of the Convention.

The Committee requests the Government to send in a detailed report on the specific measures adopted in this respect.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information supplied by the Government representative at the Conference Committee in 1993 and the discussions held in the same Committee.

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which addressed the following issues:

The Committee regrets to note that the amendments to sections 223(b) and 241(c) of the Labour Code do not take account of the Committee's comments and that sections 211(a) and (b), 222(f) and (m), 243(a) and 249, 255 and 257 of the Code have not yet been amended. The Committee wishes to recall the following provisions of the legislation which are still at variance with the Convention: -- the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Code); -- the requirement of Guatemalan nationality in order to form trade unions or to be eligible for trade union office (new paragraph "d" of section 220 and section 223(b)); -- the requirement of a majority of two-thirds of the workers in the enterprise or production centre (section 241(c)) and of the members of a trade union (section 222(f) and (m)) for the calling of a strike; -- the prohibition of strikes or work stoppages by agricultural workers at harvest time, with a few exceptions (sections 243(a) and 249); -- the prohibition of strikes or work stoppages by workers in enterprises or services in which the Government considers that a suspension of their work would seriously affect the national economy (sections 243(d) and 249); -- the possibility of calling upon the national police to ensure the continuation of work in the event of an unlawful strike (section 255); -- the detention and trial of persons in breach of the provisions of Title VII of the Code (section 257); -- the sentence of one to five years' imprisonment for persons who carry out acts intended not only to cause sabotage and destruction (which do not come within the scope of the protection provided by the Convention), but also to paralyse or disturb the functioning of enterprises contributing to the development of the national economy, with a view to jeopardizing national production (section 390(2) of the Penal Code). Furthermore, the Committee observes that new paragraph "d" of section 220 of the Code requires a sworn statement from members of the interim executive committee of a trade union to the effect that, amongst other things, they have no criminal record and are active workers in the enterprise or on their own account; in addition, section 223(b) establishes, amongst other requirements for membership of the executive committee, that candidates must be active workers at the time of election and that at least three of them must know how to read and write. With regard to the requirement that members must have no criminal record, the Committee considers that a conviction on account of activities the nature of which is not such as to call into question the integrity of the person concerned, and is not such as to be prejudicial to the exercise of trade union functions, should not constitute grounds for disqualification from trade union office and that legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 120). With regard to the requirement that members must be active workers in the enterprise, in the opinion of the Committee, provisions of this type may prevent qualified persons, such as pensioners or full-time union officers, from carrying out union duties. They may also deprive unions of the benefit of the experience of certain officers, particularly when they are unable to provide enough qualified persons from their own ranks (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 117); especially if at least three of them are required to know how to read and write, as prescribed by the above-mentioned legislation. The Committee therefore requests the Government to take the necessary measures to make the legislation more flexible by exempting a reasonable proportion of the officers of an organization from the obligation of being employed in the enterprise. The Committee again hopes that the Government will pursue its efforts to bring all its legislation into line with the requirements of the Convention, thereby accommodating the comments that the Committee has been making for many years. The Committee asks the Government to provide information in its next report on the measures adopted to give full effect to the Convention.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information supplied by the Government representative to the Conference Committee on the Application of Standards in June 1995 and the ensuing debate. The Committee also notes the interim conclusions concerning, among other matters, the violation of basic human rights and obstacles to the establishment of trade union organizations, which were adopted by the Committee on Freedom of Association (Cases Nos. 1512, 1539, 1595, 1740, 1778 and 1786) and approved by the Governing Body at its 263rd Session in June 1995 (see 299th Report, paras. 402 to 427), as well as the report of the direct contacts mission between representatives of the Government and a representative of the Director-General, undertaken from 13 to 17 February 1995.

In the same way as the Committee on Freedom of Association, the Committee of Experts wishes to signal that the rights of workers' and employers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against these organizations' leaders and members and that it is for governments to ensure that this principle is respected (see paragraph 407 of the 299th Report, referred to above).

The Committee recalls that its previous comments referred to:

- the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Labour Code);

- the requirement of Guatemalan nationality in order to form part of the provisional founding executive committee of a trade union or to be eligible for trade union office (new paragraph "d" of section 220 and section 223(b));

- the requirement of a sworn statement from members of the provisional founding executive committee of a trade union to the effect that, amongst other matters, they have no criminal record and are active workers within the enterprise or are working on their own account (new paragraph "d" of section 220);

- the requirement that candidates must be active workers at the time of election and that at least three of them must be able to read and write (section 223(b));

- the requirement of a majority of two-thirds of the workers in the enterprise or production centre (section 241(c)) and of the members of a trade union (section 222(f) and (m)) for the calling of a strike;

- the prohibition of strikes or work stoppages by agricultural workers at harvest time, with a few exceptions (sections 243(a) and 249);

- the prohibition of strikes or work stoppages by workers in enterprises or services in which the Government considers that a suspension of their work would seriously affect the national economy (sections 243(d) and 249);

- the possibility of calling upon the national police to ensure the continuation of work in the event of an unlawful strike (section 255);

- the detention and trial of persons who call for an illegal strike (section 257);

- the sentence of one to five years' imprisonment for persons who carry out acts intended not only to cause sabotage and destruction (which do not come within the scope of the protection provided by the Convention), but also to paralyse or disturb the functioning of enterprises contributing to the development of the national economy, with a view to jeopardizing national production (section 390, paragraph 2, of the Penal Code).

The Committee takes due note that, in accordance with the indications provided by the Government representative to the Conference Committee on the Application of Standards in June 1995, the Ministry of Labour will shortly convene a meeting with the social partners to analyse the comments made by the Committee of Experts with a view to overcoming the above divergencies. Nevertheless, the Committee notes with concern that the Government representative gave no assurance that such divergencies would be resolved and indicated that it is the Congress of the Republic that is competent to take legislative action. The Committee also regrets to note that the Government has not replied to its comments.

In the same way as the Conference Committee on the Application of Standards, the Committee of Experts urges the Government to take the necessary measures to guarantee in both law and practice that the provisions of the Convention are fully applied and that the principles of freedom of association are observed.

The Committee requests the Government to provide a detailed report on the specific measures adopted in this respect.

REQUESTS The Government is asked to supply full particulars to the Conference at its 83rd Session.) #CONFERENCE_SESSION:83

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the Government's report, the information provided at the Conference Committee in June 1991, and the amendments to the Labour Code introduced by Decree No. 64-92 (Diario de Centroamérica, 2 December 1992).

The Committee notes with interest that the provisions of the Labour Code under which trade unions and their executives were prohibited from taking part in politics (section 207) and that trade unions that took part in matters concerning electoral or party politics must be dissolved (section 226(a)) have been removed from the Code by the above-mentioned amendments.

The Committee regrets to note that the amendments to sections 223(b) and 241(c) of the Labour Code do not take account of the Committee's comments and that sections 211(a) and (b), 222(f) and (m), 243(a) and 249, 255 and 257 of the Code have not yet been amended.

The Committee wishes to recall the following provisions of the legislation which are still at variance with the Convention:

- the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Code);

- the requirement of Guatemalan nationality in order to form trade unions or to be eligible for trade union office (new paragraph "d" of section 220 and section 223(b));

- the requirement of a majority of two-thirds of the workers in the enterprise or production centre (section 241(c)) and of the members of a trade union (section 222(f) and (m)) for the calling of a strike;

- the prohibition of strikes or work stoppages by agricultural workers at harvest time, with a few exceptions (sections 243(a) and 249);

- the prohibition of strikes or work stoppages by workers in enterprises or services in which the Government considers that a suspension of their work would seriously affect the national economy (sections 243(d) and 249);

- the possibility of calling upon the national police to ensure the continuation of work in the event of an unlawful strike (section 255);

- the detention and trial of persons in breach of the provisions of Title VII of the Code (section 257);

- the sentence of one to five years' imprisonment for persons who carry out acts intended not only to cause sabotage and destruction (which do not come within the scope of the protection provided by the Convention), but also to paralyse or disturb the functioning of enterprises contributing to the development of the national economy, with a view to jeopardizing national production (section 390(2) of the Penal Code).

Furthermore, the Committee observes that new paragraph "d" of section 220 of the Code requires a sworn statement from members of the interim executive committee of a trade union to the effect that, amongst other things, they have no criminal record and are active workers in the enterprise or on their own account; in addition, section 223(b) establishes, amongst other requirements for membership of the executive committee, that candidates must be active workers at the time of election and that at least three of them must know how to read and write.

With regard to the requirement that members must have no criminal record, the Committee considers that a conviction on account of activities the nature of which is not such as to call into question the integrity of the person concerned, and is not such as to be prejudicial to the exercise of trade union functions, should not constitute grounds for disqualification from trade union office and that legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association (see the 1983 General Survey by the Committee of Experts, paragraph 164).

With regard to the requirement that members must be active workers in the enterprise, in the opinion of the Committee, provisions of this type may prevent qualified persons, such as pensioners or full-time union officers, from carrying out union duties. They may also deprive unions of the benefit of the experience of certain officers, particularly when they are unable to provide enough qualified persons from their own ranks (see the 1983 General Survey by the Committee of Experts, paragraph 158); especially if at least three of them are required to know how to read and write, as prescribed by the above-mentioned legislation.

The Committee therefore requests the Government to take the necessary measures to make the legislation more flexible by exempting a reasonable proportion of the officers of an organization from the obligation of being employed in the enterprise.

The Committee again hopes that the Government will pursue its efforts to bring all its legislation into line with the requirements of the Convention, thereby accommodating the comments that the Committee has been making for many years. The Committee asks the Government to provide information in its next report on the measures adopted to give full effect to the Convention.

[The Government is asked to supply full particulars to the Conference at its 80th Session.]

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the Government's report.

The Committee recalls that the discrepancies between the national legislation and the Convention concern the following points:

- section 211(a) and (b) on the strict supervision of trade union activities by the Government;

- section 207 on the impossibility for unions to take part in politics;

- section 226(a) on the dissolution of trade unions that have taken part in matters concerning electoral or party politics;

- section 223(b) which limits the eligibility for trade union office to Guatemalan nationals;

- section 241(c) which lays down the obligation to obtain a majority of two-thirds of the workers in the enterprise or production centre for the calling of a strike;

- section 222(f) and (m) which requires a majority of two-thirds of the members of a trade union for the calling of a strike;

- sections 243(a) and 249 which prohibit strikes or work stoppages by agricultural workers at harvest time, with a few exceptions;

- sections 243(d) and 249 which prohibit strikes or work stoppages by workers in enterprises or services in which the Government considers that a suspension of their work would seriously affect the national economy;

- section 255 which provides for the possibility of calling upon the national police to ensure the continuation of work in the event of an illegal strike;

- section 257 which provides for the detention and trial of offenders;

- section 390(2) under which a sentence of one to five years' imprisonment can be imposed on those who carry out acts intended not only to cause sabotage and destruction (which, indeed, do not lie within the scope of the protection provided by the Convention), but also to paralyse or disturb the functioning of enterprises contributing to the development of the national economy, with a view to jeopardising national production.

The Committee has pointed out repeatedly that with regard to the election of trade union leaders, provisions to the effect that they shall be nationals of the country should be relaxed in order to enable foreign workers to obtain access to trade union office, at least after a reasonable period of residence in the host country; and that, with regard to the prohibition of political activities, the legislation should permit trade unions to participate in public institutions in order to improve the cultural, economic and social conditions of the workers. With regard to the exercise of the right to strike, limitations and prohibitions are only compatible with the Convention in respect of essential services in the strict sense of the term, that is where their interruption would endanger the life, personal safety or health of the whole or part of the population, or in the event of an acute national crisis.

Furthermore, the Committee wishes to recall that in previous comments it has also referred to the 259th Report of the Committee on Freedom of Association, in which that Committee examined allegations of excessive delay on the part of the authorities in trade union registration procedures. The Government replied that the Ministry of Labour and Social Security had taken the initiative of proposing amendments to a number of sections of the Labour Code.

The Committee notes that, according to the Government's report, the draft of a new Labour Code which has been approved at its first reading by the Congress of the Republic, is now before the Congress for examination and analysis and takes account of all the Committee's observations.

The Committee hopes that the new Labour Code will be adopted in the near future and that the final version will bring national legislation and practice into full conformity with the provisions of the Convention. The Committee asks the Government to provide information in this respect.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes with interest the establishment of the "Tripartite Committee to Update and Develop the Labour Code" which will put forward proposed amendments to the current Labour Code.

Without overlooking this positive development, the Committee emphasises the need to bring the whole of Guatemalan legislation into conformity with the Convention, and in particular the following sections of the Labour Code of 16 August 1961:

- section 211(a) and (b) on the strict supervision of trade union activities by the Government;

- section 207 on the impossibility for unions to take part in politics;

- section 226(a) on the dissolution of trade unions that have taken part in matters concerning electoral or party politics;

- section 223(b) which confines to Guatemalans the possibility of being elected to trade union office;

- section 241(c) which lays down the obligation to obtain a majority of two-thirds of the workers in the enterprise or production centre for the calling of a strike;

- section 222(f) and (m) which requires a majority of two-thirds of the members of a trade union for the calling of a strike;

- sections 243(a) and 249 which prohibit strikes or work stoppages by agricultural workers at harvest time, with a few exceptions;

- sections 243(d) and 249 which prohibit strikes or work stoppages by workers in enterprises or services in which the Government considers that a suspension of their work would seriously affect the national economy;

- section 255 which provides for the possibility of calling upon the national police to ensure the continuation of work in the event of an illegal strike;

- section 257 which provides for the detention and trial of offenders;

- section 390(2) under which a sentence of from one to five years' imprisonment can be imposed on those who carry out acts intended not only to cause sabotage and destruction (which, indeed, do not lie within the scope of the protection provided by the Convention), but also to paralyse or disturb the functioning of enterprises contributing to the development of the national economy, with a view to jeopardising national production. The Committee once again recalls that: with regard to the election of trade union leaders, provisions to the effect that they shall be nationals of the country should be relaxed in order to enable foreign workers to obtain access to trade union office, at least after a reasonable period of residence in the host country; that, with regard to the prohibition of political activities, the legislation should permit trade unions to participate in public institutions with the task of improving the cultural, economic and social conditions of the workers; and that, with regard to the exercise of the right to strike, limitations and prohibitions are only compatible with the Convention in respect of essential services in the strict sense of the term, that is where their interruption due to a strike would endanger the life, personal safety or health of the whole or part of the population, or in the event of an acute national crisis.

However, the Committee notes with interest the information supplied by the Government within the context of Case No. 1459 before the Committee on Freedom of Association (see the 259th Report of the Committee on Freedom of Association, paragraphs 275 to 306, approved by the Governing Body at its 241st Session (November 1988)) according to which the Ministry of Labour and Social Security has taken the initiative of proposing amendments to a number of sections of the Labour Code, which will be examined by the legislative body in the near future.

The Committee once again urges the Government to inform it as soon as possible of the measures that have been adopted or are envisaged in order to bring the whole of the legislation into conformity with the provisions of the Convention.